Learn now to hold two jobs on an H-1B visa!

The most common form of employment on an H-1B visa in the U.S. is full-time employment with a single employer. However, the regulations permit “concurrent employment.” This means that more than one employer can engage the services of an H-1B worker in certain circumstances. An H-1B petition filed to authorize an H-1B worker to be employed in another job concurrent with his current H-1B employment, is commonly referred to as a “Concurrent H-1B.”

The second employer who seeks to engage the H-1B worker in concurrent employment must go through the entire H-1B process as well as convince the USCIS that the employee is eligible for an H-1B and that the second job is a specialty occupation. This means that the employer must also pay the prevailing wages for a job code that is appropriate to the concurrent position. The second employer must initiate the application by filing a Labour Condition Application (LCA) attesting to these and other H-1 requirements.

The concurrent H-1B employment need not fall under the same specialty occupation as that of the applicant’s first employment.

A concurrent H-1B cannot be filed at the time of the initial H-1B selection for that employee that would be subject to the annual cap and the employer needs the employee’s services for a full-time job, which generally involves 35-40 hours of work a week. The employee may file a concurrent H-1B petition after the employee has an approved H-1B petition and the individual enters the U.S. in valid H-1B status.

There is no limit on the number of concurrent H-1Bs an employee can hold. But the cumulative hours that the employee will work must be plausible and possible.

One of the most important points to remember is that while H-1B employees are not permitted to work under contract, part-time employees, who do not need a visa sponsor, frequently do so. Thus, to maintain concurrent visa status, an employer-employee relation is crucial. It is therefore advisable to make sure foreign nationals are retained on the employer’s payroll and have a W-2 to confirm their employment with respective employers.

The USCIS does not require the primary sponsoring company be informed about the applicant’s H-1B concurrent employment. However, the second employer must specifically select “Concurrent Employment” in Form I-129 when filing the H-1B petition for concurrent employment.

One of the major concerns most H-1B applicants have is whether they can hold their second employment even if they have left or have been terminated from the original sponsoring company. It is important to note here that the non-immigrant will continue to maintain his H-1B status and can continue to work for the second employer irrespective of any changes in his first employment.

While this is a good avenue for a lot of H-1B visa holders to earn more and improve their financial status, having an approved H-1B petition does not automatically result in an approval of the concurrent H-1B petition.

With inputs from Manizeh Mistry, Associate Partner at LawQuest.

US Immigration Alert | Premium Processing Services Extended to Additional I-140 Pending Cases

Premium Processing Services Extended to Additional I-140 Pending Cases

The U.S. Citizenship and Immigration Services (USCIS) announced that it will extend premium processing services to additional pending cases. This third phase is similar to the first and second phases and will apply to certain previously filed Form I-140 petitions under the EB-1 and EB-2 classifications.

Petitioners may request premium processing upgrades by filing the new edition of Form I-907, Request for Premium Processing. Beginning September 15, 2022, the USCIS will accept Form I-907 requests for:
• Multinational executive and manager petitions that were received by the USCIS on or before January 1, 2022.
• NIW petitions that were received by the USCIS on or before February 1, 2022.

The USCIS is taking a phased approach to expanding premium processing as part of a broader effort to reduce backlogs. The USCIS will take up to 45 days to provide a decision under the premium processing request for the above Form I-140 classifications.

LawQuest US Immigration Alert | FY2023 H-1B Cap Apparently Reached

FY 2023 H-1B Cap Apparently Reached

It appears that the H-1B CAP has been reached for FY 2023.  Over the past several days, we have noted that the USCIS is sending non-selection notifications to registrants’ online accounts. The USCIS can only send a non-selection notice to a properly submitted H-1B registration once they have determined enough cases have been selected to reach the cap.

The status for registrations properly submitted for the FY 2023 H-1B numerical allocations, but that were not selected, show:

“Not Selected”: not eligible to file an H-1B cap petition based on this registration.

Unlike prior years, this year the USCIS only needed to perform one selection process. During FY 2022, the USCIS conducted selections in March and subsequently in July, resulting in approximately 131,970 selections. For FY 2023, the USCIS received 483,927 H-1B registrations and initially selected 127,600 registrations to reach the 85,000 total FY 2023 numerical allocations.

The USCIS will continue to accept and process petitions that are otherwise exempt from the cap:

  • Petitions filed for current H-1B workers who have been counted previously against the cap, and who still retain their cap number.
  • H-1B petitions filed to:
    • Extend the amount of time a current H-1B worker may remain in the United States;
    • Change the terms of employment for current H-1B workers;
    • Allow current H-1B workers to change employers; and
    • Allow current H-1B workers to work concurrently in additional H-1B positions.

We will continue to monitor the USCIS’s website for an official announcement.

USCIS Will No Longer Accept Combined Fee Payments For EB-5, Immigrant Investor Program Applications or Petitions

USCIS Will No Longer Accept Combined Fee Payments For EB-5, Immigrant Investor Program Petitions

The USCIS has announced that going forward they will no longer accept combined fee payment of Form I-526 (Immigrant Petition by Standalone Investor) or Form I-526E (Immigrant Petition by Regional Center Investor), filed with Form I-485 (Application to Register Permanent Residence or Adjust Status), Form I-131 (Application for Travel Document), or Form I-765 (Application for Employment Authorization by a petitioner). Combined fee payment for Forms I-485, I-131 and I-765 will be accepted, although a separate check payment for fees towards Form I-526 or I-526E must be sent and the failure to do so will force the USCIS to reject the form and reimburse the fee payment amount on account of improper fee payment.

Since requests for immigration benefits are currently being processed electronically by the USCIS, a different payment instrument is needed for each of the Form I-526 and I-526E petitions because they are not all handled through the same system. The USCIS understands that while this requirement may be rather inconvenient for the petitioners and applicants, the benefit of a computerized processing exceeds the drawbacks of submitting individual fee payments for the agency and the general public.