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Options for Employment of Cap-Exempt H-1B Workers through Cap-Subject Employers

USCIS guidance provides that certain employers are eligible for exemption from H-1B cap based employment if they are (1) an institution of higher education, (2) a related or affiliated nonprofit entity, (3) a nonprofit research organization, (4) or a governmental research organization as codified in INA § 214(g)(5)(A)-(B). Please note that an employer who is a government municipality or agency may not be automatically eligible for cap-exemption if is not also involved in research, higher education or nonprofit sectors. 

If you are an H-1B worker who is currently working with a cap-exempt employer or a cap-subject employer who is interested in hiring an H-1B worker, below are a couple options that could be available for your situation.

Concurrent Employment

H-1B workers are permitted to work with multiple employers simultaneously during their valid H-1B nonimmigrant status. There is no stipulation that both employers must be either cap-exempt or cap-subject employers. Therefore, where an H-1B worker is working for a cap-exempt Company A, this same worker can be concurrently employed by a cap-subject Company B.

Company B will need to file a separate LCA (Labor Condition Application) and Form I-129 petition requesting “New concurrent employment” on a part-time or full-time basis. The H-1B worker would be able to start working upon receipt of the concurrent petition filing with Company B while simultaneously staying employed with Company A. The H-1B would not need show proof of registration or selection in the H-1B lottery. This remains true throughout the H-1B worker’s validity period with Company A. If at any point in the validity period, the primary Company A employment is terminated, the H-1B worker will no longer have work authorization to work for Company B on a concurrent employment basis.   

Cap-Subject Employment with third-party placement at a qualifying cap-exempt end-client 

Another option available for cap-subject employment of a cap-exempt H-1B worker is where the petitioning cap-subject employer is hiring the H-1B worker to perform job duties at a qualifying institution of higher education, nonprofit, or governmental research. This allows for the cap-subject employer to benefit from cap-exemption through third-party placement of the H-1B worker at a qualifying institution. However, this benefit does come with the burden on the petitioning cap-subject employer to establish the contractual relationship with the qualifying institution as well as show that the work performed by the H-1B worker furthers the essential purpose, mission, objectives, or function of the qualifying cap-exempt institution.

If you are contemplating whether either of these options is viable in your case, be sure to consult with a business immigration attorney.  

By : Jeanetly Garcia 

Jeanetly Garcia advises employers and individuals through all phases of the non-immigrant visa process. As an attorney in the H-1B Department at Reddy Neumann Brown PC she is experienced in filing nonimmigrant petitions and applications for immigrant benefits, as well as, responding to USCIS issued requests for evidence concerning an array of legal issues. 

Reddy & Neumann has been serving the business community for over 20 years and is Houston’s largest immigration law firm focused solely on US. Employment-based immigration. We work with both employers and their employees, helping them navigate the immigration process quickly and cost-effectively.