Written by attorney Carl Michael Shusterman

Can I "Moonlight" on an H-1B Visa?

If you are an H-1B worker then you should know that you are only authorized by the U.S. Citizenship & Immigration Services (USCIS) to work for the company that sponsored you for your H-1B Petition. Any gainful employment outside this company is prohibited and is considered a violation of your legal non-immigrant status. However, if you have an opportunity for part-time employment, how can you just say “no" to more money?

You may not have to pass it up if the part-time employment you are considering or being offered is also a specialty occupation; if so, applying for a concurrent H-1B petition is an option for you. Although a concurrent H-1B petition is not limited to part-time employment it is more realistic to hold one full-time job and a second part-time job than two full-time jobs at the same time. USCIS will keep this in mind when adjudicating your concurrent H-1B petition.

So, what exactly is a concurrent H-1B petition? Well, processing a concurrent H-1B petition is no different from processing a regular H-1B Petition in that the same requirements and standards apply and have to be met. The offered position must be an occupation which requires a minimum of a bachelor’s degree or its foreign equivalent; the offered wage must meet or (even better for you) exceed the prevailing wage for the occupation; and, you must of course possess the necessary education or its equivalent to qualify for the position.

When filing your concurrent H-1B petition, it is important for your immigration counsel to identify to the USCIS that the H-1B petition being filed on your behalf is for concurrent employment. Once your concurrent H-1B petition has been filed with USCIS you should get a decision in about three to four months. Of course, as with any regular H-1B petition, premium processing service is also available. However, why pay USCIS an extra $1,225 in filing fees when it is not really necessary? Unlike your first H-1B petition you don’t have to wait for USCIS to approve the concurrent H-1B petition before you start working with the second company. Since you are already in H-1B status, you benefit from the H-1B portability rule and you can start working for the second company as soon as your concurrent H-1B petition has been received by USCIS.

If you obtained your current H-1B status through a cap-exempt employer, another benefit to processing a concurrent H-1B petition (aside from providing you with the opportunity to earn more money) is that your part-time employment may be with a cap-subject employer. Having a cap-subject employer means that the concurrent H-1B petition will be filed under the H-1B cap and you will be counted towards the cap. So, should you later decide to change employers you will no longer have to worry about being subject to the H-1B cap. This is an important consideration especially if the economy starts picking up and more employers start filing for H-1B petitions once again. I’m sure we all still remember what it was like to participate in the great H-1B lottery a few years back.

Although concurrent H-1B petitions are available to all who qualify for this option it is most often utilized by physicians, software consultants, or other allied healthcare professionals. If you find yourself in a position to accept part-time employment, call your immigration representative as soon as you can to determine if you qualify for the concurrent H-1B petition.

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