As the first round of H-1B Cap selections ended on April 1, 2024, employers began looking for options to sponsor highly qualified employees to fill positions of need. We outlined some options for those not selected in a previous client alert, including L-1 visas for intracompany transfers, O-1 visas for extraordinary ability individuals, J-1 and F-1 visas for students and other country-specific options.

In addition to the options above, finding employment with “H-1B cap-exempt” employers is another route to H-1B status. These include:

• institutions of higher education,
• non-profit entities that are affiliated with institutions of higher education,
• non-profit research organizations and
• government research organizations,. 

H-1B cap-exempt employers have the benefit of being able to obtain H-1B petition approvals at any time during the year for part-time or full-time employment.

In addition, cap-subject employers may benefit if a potential employee already has an H-1B cap-exempt petition approval. An important, and often overlooked, rule allows foreign nationals to hold H-1B status with two separate employers at the same time.  If the first of those employers is H-1B cap-exempt, an H-1B cap-subject employer may also file an H-1B petition requesting concurrent employment for that same employee. Below is an example of how this process may work.

Cap-subject employer Manufacturing, Inc. wants to hire an employee, Mikel, who is from Nigeria, but he was not selected in the H-1B cap lottery. Mikel works part-time, approximately 5-10 hours a week, teaching chemistry at the local Tech State College. Mikel has H-1B status through the university for his part-time employment, and it is a cap-exempt employer. Manufacturing, Inc. still wants to hire Mikel as a chemical engineer despite him not winning the H-1B cap lottery. Under the rule referenced above, Manufacturing, Inc. can file an H-1B petition to employ Mikel concurrently, either part-time or full-time in H-1B status, even though it is a cap-subject employer.

There are a few important caveats to this rule. First, if the cap-exempt employment ends, the U.S. Citizenship and Immigration Services (“USCIS”) considers the worker subject to the H-1B cap again and may revoke the approval of the concurrent employer. See 8 U.S.C. 1184(g)(6). If Tech State College decides to terminate Mikel, Mikel will also have to cease working for Manufacturing, Inc. Thus, it is important to consider that parts of the employee’s ongoing H-1B employment authorization could be outside of the employee or cap-subject employer’s control.

Second, the total number of hours worked per week by Mikel for both employers must be reasonable, i.e., Mikel cannot have two-full time jobs.  There is no minimum amount of hours per week for which a part-time H-1B petition approval can be granted. For example, Mikel could work five hours a week at Tech State College and 35 hours a week at Manufacturing, Inc.

This strategy has the potential to benefit both H-1B cap-subject employers and their potential employees.  Commercial organizations and companies exist to help foreign nationals, or their potential cap-subject employers, locate part-time H-1B cap-exempt employment opportunities. If you are a cap-subject employer, utilizing this rule for concurrent H-1B employment may be a viable option to hire a foreign national that did not win the H-1B cap lottery.