H-1B Concurrent Employment Key Facts
- An H-1B employee can simultaneously work for two different H-1B employers (petitioners). This is also known as “Concurrent Employment”.
- Each H-1B employer/petitioner must file a separate Labor Condition Application (“LCA”), and subsequently an H-1B petition.
Each concurrently filed H-1B petition is individually subject to a quota (unless employers are cap-exempt).
H-1B employee may work:
- Full-time for one employer, and part-time for another;
- Part-time for one or more employers.
Each H-1B petition will be approved on its own merit. The H-1B employee can work in with different employers at the same time, as long as:
- Job Position is still a specialty occupation requiring a relevant bachelor’s degree or foreign equivalent.
- H-1B employee is a “professional” who qualifies to perform skills required by this specialty occupation by way of specialized knowledge and bachelor’s degree or foreign equivalent.
- It is always advisable that the H-1B employee works in an occupational classification which is similar or very closely related, although with different employers at the same time.
Scenarios for Concurrent Employment
Lets say, for example, an H-1B employee has two approved petitions filed by both, Employer A and Employer B. She initially elects to take up employment with Employer A, but later becomes dissatisfied and switches to Employer B.
Would Employer B’s petition require an H-1B Amendment?
NO. New or amended petition will not be required, as long as there is no “material change” in the terms and conditions of Employer B’s employment, from the originally filed petition.
Could she take a Leave of Absence from Employer A, work for Employer B and then return back to work for Employer A?
YES. If petitions for both Employer A and Employer B have been approved for an H-1B employee, she could take a 6-8 month leave of absence from Employer A to work for Employer B, and then resume working for Employer A without filing a new H-1B petition.
It is important to note that in each of the above scenarios, the original H-1B petition had not been revoked, either by USCIS or by Employer A. Under H-1B regulations, however, an employer is supposed to promptly notify USCICS when the employee is no longer working with the employer, at which time USCIS may then revoke the petition.
Although Employer A faces a risk of front-pay for the term of the LCA, and should have revoked the H-1B petition for a bonafide termination, in this instance no penalty can be applied, and the petition filed by Employer A will remain valid.
Does an H-1B Employee have more than one Visa if employed by more than one Employers?
NO. An H-1B employee can work for multiple employers when in the United States. However, he/she may not hold more than one valid visa in the same classification (here it is H-1B) at the same time. In the above scenarios, even if H-1B employee was outside of the United States when the petition for Employer B was approved, she could be readmitted on the visa issued for Employer A.
Working for Cap Exempt and Non-Exempt Employers simultaneously
An H-1B employee can work simultaneously for a cap-exempt and a non-exempt employer on two different H-1B petitions. However, at the time of filing an H-1B petition with a non-exempt employer:
- If H-1B employee remains continued to be employed with the cap-exempt employer, he/she will not be counted toward the cap.
- If the H-1B employee has “ceased” to be employed in a cap-exempt position, then the he/she will be subject to the H-1B numerical limitation, and the concurrent employment petition may not be approved unless a cap number becomes available.
- If USCIS determines that an H-1B employee has “ceased” to be employed in a cap-exempt position after a new cap-subject H-1B petition has been approved on his or her behalf, USCIS will deny any subsequent cap-subject H-1B petition filed on behalf of the H-1B alien beneficiary if no cap numbers are available.