Practice Pointer: Concurrent H-1B Employment Frequently Asked Questions

With the post-pandemic reality of long-term remote or hybrid work, many employees are enjoying increased flexibility in the workplace. This flexibility can create new opportunities. Namely, since there is currently a high demand in the information technology sector, many employees in this field are interested in pursuing a secondary position. While the H-1B program allows for concurrent employment, there are several considerations that must be taken to ensure compliance with all applicable immigration laws. As such, ILBSG has compiled some frequently asked questions regarding concurrent employment below, to help you get the advice you need.

Q: What is concurrent H-1B employment?
A: Concurrent H-1B employment refers to an H-1B petition filed on behalf of a foreign worker who already holds H-1B status, in order for that worker to be employed by another employer at the same time.

Q: What are the requirements for concurrent H-1B employment?
A: Concurrent H-1B employment has the same requirements as any other H-1B petition. The position must be a specialty occupation (meaning the position requires a bachelor’s degree or higher in a specific specialty) and you must be qualified for the position by virtue of your degree and experience. Your employer must be able to prove a bonafide, valid employer-employee relationship exists, that all prevailing wage requirements are met and that the LCA notice requirements are satisfied.

Q: What is the process for applying for concurrent H-1B employment?
A: The process is the same as any other H-1B petition. Your secondary employer must first file an LCA for the position, before filing an I-129 petition on your behalf. On the I-129 form, on page 2, the employer will mark “new concurrent employment.” The filing fees are the same as the standard H-1B filing fees for new employment and will depend on the employer’s employee count.

Q: Is there a limit on concurrent employment or can I work more than two jobs?
A: Technically, there is no legal limit on the number of concurrent H-1B employers you can have, but you have to be realistic and practical about the number of hours you can work. Since you must maintain your H-1B status with each individual employer, you must be able to show how you work the required hours for each separate position – there cannot be an overlap in your hours for each employer. If you plan to work with more than two employers, you must work reasonable hours for each of the three or more employers, so that your total hours’ commitment per week is feasible. Otherwise, USCIS is unlikely to approve the additional concurrent H-1B petitions.

Q: Can I work two full-time jobs?
A: Technically and legally speaking, yes. But that doesn’t mean it is advisable, nor does it mean USCIS will approve an H-1B concurrent petition for a second full-time job. If you want to work two full-time positions, meaning 35-40 hours per week, you will need to substantiate how this will be possible through careful documentation. Both employers (and end clients, if applicable) would need to confirm your schedule in writing so that you could prove to USCIS which hours you will work for each employer. For example, if Employer A confirmed a work schedule from 7 am-3 pm, Employer B would have to show a work schedule for hours outside of that time frame, such as 4 pm-midnight. Even then, USCIS will likely still have doubts and raise an inquiry. At that stage, you would need to substantiate the arrangement through timesheets, status reports, and other evidence.
Practically speaking, concurrent employment for two full-time positions is unlikely to work. At ILBSG, we strongly advise against this arrangement. Even if approved, you could run into problems later if USCIS discovers your hours with each employer overlap or that you are not working the full hours for each employer each day. Since you have to maintain your status with each employer, there is an increased risk of a status violation if you work two full-time positions and overextend yourself. We strongly discourage using concurrent employment in this manner.

Q: How many hours are advisable for H-1B concurrent employment?
A: The ideal arrangement would be one full-time job and one part-time job, with a range of up to 20-25 hours maximum for the part-time job. For the part-time job, it is best to include a wider range of hours in the I-129 petition, so that you have the flexibility to adjust if you determine you cannot work as many hours as you originally planned. For example, if you include a range of 10-20 hours in the I-129 petition, if you find you cannot manage 20 hours at the second job, you can work 10 hours instead without violating the terms of the petition.

Another possible arrangement is two part-time jobs with a greater number of hours, such as two jobs for 25-30 hours per week. When evaluating the number of hours you can work and the breakdown for each employer, we advise working with an experienced immigration attorney to get the best result.

Q: Can I work at two different locations?
A: Yes, but only if you can physically work in both locations each day. In other words, the locations would need to be close enough to each other that you can commute from the first work location to the second work location in a reasonable amount of time. To maintain H-1B status with each employer, you are only permitted to work at the LCA location included in that petition. This means that while you could certainly hold two positions in two different towns that are a short drive from each other, you could not hold concurrent employment for jobs in different states. When you file for H-1B concurrent employment, it must be feasible that you can perform the job duties for both positions during the hours indicated for each job, at the locations certified by the respective LCAs. USCIS will be looking at whether the two locations are a commutable distance from each other.

It is much simpler to hold two H-1B positions working remotely from your home location, since then the location is the same in both LCAs. Nonetheless, it is possible to hold concurrent H-1B status for a position in a different location than your primary H-1B, if it is feasible you can commute to both locations each day. When filing for concurrent employment in different locations, we advise working with an experienced immigration attorney to make sure the arrangement is practical and will not invite scrutiny.

Q: Can I work in two separate, unrelated fields?
A: Yes, as long as each position is a specialty occupation that requires a bachelor’s degree in a specific specialty and you hold the required degree for each position, you can work in two different fields using H-1B concurrent employment.

Q: Once a concurrent H-1B petition has been filed on my behalf, when can I start working?
A: As soon as the concurrent H-1B petition is filed with USCIS, you can begin working for the secondary employer. You do not have to wait for the petition to be approved.

Q: Must I notify my primary H-1B employer about my secondary H-1B employer?
A: It depends. USCIS will not notify your primary H-1B employer about the concurrent H-1B filing, but you may have obligations to disclose your secondary employment based on agreements you have signed. Particularly if you are working on an end client project with your primary employer through a vendor, your employer may have signed an exclusivity clause stating you are not working for any other clients. In that event, it may be necessary to disclose to your employer you are working outside the organization with another employer, to ensure you and your primary employer are not in breach of contract. We advise consulting with an experienced immigration attorney about this issue. An immigration attorney can review your employment contract and anything else you have signed, to establish what your legal obligations are.

Q: After my concurrent H-1B is approved, if I travel outside the U.S., do I need to attend stamping again?
A: No, if you have a valid H-1B stamp in your passport already, you do not need to attend stamping again for the concurrent H-1B employment.

There are complexities beyond the obvious for all immigration-related issues. This is particularly true for the H-1B visa and all employment visas. Working with an experienced and expert immigration attorney is key to ensuring you remain in compliance from start to completion. Contact us at ILBSG. We work with our clients for their individual specific situations to ensure they get the right advice.