While most H-1B employment is full-time, there is no requirement that a position be full-time in order to qualify for H-1B classification. Part-time H-1B employment may be useful for:

• Employers who, as a result of the economic climate, must reduce hours. Changing a full-time H-1B employee to part-time may allow the company to avoid a layoff.
• Employees who seek to work for more than one H-1B employer simultaneously. Concurrent H-1B employment can be for multiple full- or part-time jobs, but additional employment must be designated as concurrent employment on the I-129 form.
• Employees who choose to decrease their hours for personal reasons.

Part-time employment for H-1B purposes is considered anything less than 35 hours per week. For an H-1B employee who is currently working pursuant to an I-129 petition that is approved for full-time employment, the company will need to file an amended petition with USCIS prior to the new hours taking effect, including obtaining a new Labor Condition Application (LCA) designated for part-time employment. Please note that DOL regulations indicate that pay rates for part-time H-1B work should be listed as an hourly wage, instead of a yearly salary. The hourly rate of pay must equal or exceed the prevailing hourly wage for the occupation in the area of intended employment.

The I-129 form further requires that the number of hours per week be listed for part-time employees. This may be listed as a range (such as “20-25 hours/week”) or as “flexible.” There is no minimum number of hours that must be worked to qualify for part-time H-1B status, although the total pay should be enough to constitute a living wage (if it does not, then the petition should be accompanied by proof of the beneficiary’s other means of support, such as concurrent H-1B employment elsewhere, or household income from an employed spouse).

Employers who are considered H-1B dependent should also recalculate their H-1B dependent status if a number of employees shift from full- to part-time employment.

Employers or employees considering a shift to part-time H-1B employment should consult with immigration counsel to ensure the proper paperwork is timely filed to authorize a reduction in hours, and that relevant DOL reporting obligations are met.

By: Rebecca Chen

Rebecca Chen is a Partner at Reddy & Neumann. Her representation includes advising clients throughout the non-immigrant and immigrant visa application process, from initial filing, responding to various requests for evidence, and processing at overseas consulates. Her years of experience in the immigration field have made her a knowledgeable resource for complex business immigration matters.