As an immigration law firm, we come across many dual employment queries.
Can I become one of the mobile developers in this company and a data science professional for another business employer? Can I work full-time for both jobs?
Key Take Aways:
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Federal immigration law allows immigrants to work for a single employer with an approved H1B petition. The H1B process is the system by which USCIS allows individuals from other countries to work in the U.S. The general rule is that any work outside the employment for the approved H1B employer is prohibited.
The law does allow for concurrent employment, meaning you can work 2 H1B jobs simultaneously. However, a separate H1B application must be filed before work for the second employer may begin. All of the same rules apply to the second H1B job that apply to the first. That means the prevailing wage must be paid on a timely basis, the job title position must be at the bachelor’s degree level or beyond, and the applicant’s resume must satisfy the job alert qualifications.
In this scenario, the individual may have more than one employer, with each employer filing a separate H1B application for positions in a specialty occupation that requires specialized knowledge. The employer must show that the job position offered requires knowledge obtained at higher learning.
Employers may include both cap-subject employers, subject to the H1B visa cap limitations, and cap-exempt employers, who are not subject to the cap restrictions.
The H1B visa holder may work in multiple specialty occupations, effectively balancing their employment between two or more positions that meet the criteria for H1B sponsorship.
To further explain what is concurrent H1B visa, here’s a transcript from Jim Hacking’s video:
Hi, I’m Jim Hacking, an immigration attorney practicing law here in St. Louis, Missouri. We get a lot of questions about dual employment under the H1B process.
Very simply, the H1B process is the way that the immigration service allows foreign-born workers to work in the United States and have a bright career. Typically, if you’re here on an employment Visa, it’s an H1B Visa. Under that Visa, you typically can only work for 1 employer.
Outside employment is pretty much prohibited. If you file a second H1B application and your second employer pays for the filing fees, and goes through all of the paperwork to get that second H1B Visa, then you can indeed work for 2 separate employers.
Without that separate H1B application on file, you’re not going to be able to work for both employers. Each employer is going to have to get a prevailing wage statement, and an LCA from the Department of Labor. You are going to have to show that you’re qualified for both positions. The employer is going to create job alert at both job sites. Both employers are going to have to post the job. Each H1B application is approved.
We explain this to a lot of people. Sometimes they say, “Well, what if the second job is an independent contractor? Does that get around the requirement?” The answer is no. You can frame it however you want. At the end of the day, if you’re working for 2 different companies, you are going to have to get 2 separate H1B applications on file and approved.
Of course, with the cap on H1B Visas, a lot of times, this can be problematic. Every year we scramble at April 1st to get all the H1B applications on file because there's a lottery. Last year, there were almost twice as many filed as there were available Visas. The chances of an employee getting 2 separate H1B Visas approved are pretty slim.
If you pull it off, though, you can do it. Otherwise, you can’t work 2 H1B jobs on a single H1B.
It is possible to work for two employers, but you need to have a concurrent H1B visa.
In the concurrent employment situation, the portability rules regarding H1B transfers apply, and this allows the H1B employee to begin working for the second cap-subject employer (or cap-exempt employer) once the receipt notice for the second position is obtained from USCIS.
If you want to know more about concurrent H1B visas or need guidance in navigating the foreign national working scenario, we can help you.
We deal with this question about employment Visas all the time. If you have any questions, go ahead, and give us a call. (314) 961-8200, or you can shoot me an email at [email protected]. Thanks for visiting the website, and if you have any questions, let us know.
