Making the Most of Cap-Exempt H-1B: Working Concurrently for a Cap-Subject Employer
By Attorney Jian Joe Zhou (jzhou@hooyou.com)
The H-1B visa program is subject to an annual quota and employers have to go through a lottery process to get a chance of filing petitions for foreign workers (beneficiaries). Due to the highly competitive nature of this lottery, many foreign nationals, many are F-1 OPT students, miss out on the opportunity to work and develop their careers in the U.S. However, certain H-1B employers are exempt from this cap and do not need to go through the lottery process. These cap-exempt employers typically include universities, nonprofit research organizations, and government research institutions.
A special provision in U.S. immigration law allows foreign employees who have obtained cap-exempt H-1B status (primary H-1B) to take on additional employment with a cap-subject private employer under a Concurrent H-1B, without going through the lottery again. However, it is important to note that the validity of a Concurrent H-1B depends on maintaining the primary H-1B status. If the primary H-1B is terminated, the Concurrent H-1B may become unstable.
Under the H-1B portability rule, a Concurrent H-1B employer can allow the employee to begin working as soon as the H-1B petition is filed and the receipt notice is received, without waiting for final approval.
This article provides a detailed explanation of cap-exempt H-1B visas and Concurrent H-1B applications, helping you leverage existing resources to unlock greater career opportunities and employment flexibility.
1. Understanding Cap-Exempt H-1B
Cap-exempt H-1B visas apply to specific types of employers, including:
These employers can file H-1B petitions at any time without being subject to the annual cap.
Beyond providing foreign employees with stable U.S. work authorization, cap-exempt H-1B status can also serve as a strategic stepping stone for career advancement. It allows employees to explore additional job opportunities through Concurrent H-1B arrangements with cap-subject employers.
2. Using a Concurrent H-1B to Work for a Private Employer
What Is a Concurrent H-1B?
A Concurrent H-1B allows a foreign national who is already working in H-1B status to take on an additional job with a new employer. The new employer can file a Concurrent H-1B petition, enabling the individual to work for both employers simultaneously.
How to Work for a Private Employer While on a Cap-Exempt H-1B?
If a foreign national has already obtained an H-1B visa through a cap-exempt employer (e.g., a university), and a private company wishes to hire them for part-time work, the private employer can file a Concurrent H-1B petition. Importantly, this petition is not subject to the H-1B annual quota, allowing the employee to bypass the cap restrictions. Further more, taking the advantage of H-1b portability rule, once the petition is filed and the receipt notice is issued, the employee can immediately begin working for the private employer without waiting for final approval.
Additionally, while working under the Concurrent H-1B, the employee can explore the option of having the private employer file a cap-subject H-1B petition in a future lottery. If selected and approved, this would allow greater career flexibility, including the ability to work full-time for the private employer without being tied to the cap-exempt job.
Case Study
Robert, an F-1 international student majoring in computer science, was on a STEM OPT period and eager to continue his career in the U.S. To secure his work authorization, he accepted an IT position at a university—a cap-exempt employer—allowing him to obtain an H-1B without going through the uncertain lottery.
Since Robert’s university job was not overly demanding, he had additional availability on weekends and evenings. During this time, he met a CEO of a small tech company who was highly impressed with his skills and wanted to hire him. Having consulted an immigration attorney, Robert was aware that a private employer could file a Concurrent H-1B petition without going through the lottery. He shared this information with the CEO, who was eager to move forward.
The tech company quickly hired an attorney to file the Concurrent H-1B petition, and under the H-1B portability rule, Robert was able to start working his part-time job at the company immediately upon receiving of the receipt notice for the petition. A few months later, his Concurrent H-1B was approved without surprise.
Robert’s role at the tech company enabled him to gain valuable hands-on experience and additional income. His strong performance impressed the company leadership, and they were eager to invest in his long-term career. As a result, they agreed to file a cap-subject H-1B petition in the next lottery. If selected and approved, Robert would be free to work full-time at the company and will have the flexibility to transfer to another companies, benefiting his long-term career development.
Conclusion
The combination of cap-exempt and Concurrent H-1B options provides foreign professionals with expanded career opportunities in the U.S.
By strategically leveraging these options, foreign professionals can enhance their career prospects, explore different industries, and establish long-term employment security in the U.S.
Given the evolving immigration landscape and potential changes under new government policies, the H-1B application process has become increasingly complex. To maximize your chances of success, it is highly recommended to seek guidance from an experienced immigration attorney.
About the Author
Attorney Jian Joe Zhou is a Managing Partner at Zhang & Associates, P.C., with over 20 years of experience in business immigration law. He has successfully handled thousands of immigration cases, including complex H-1B petitions across various industries.
For legal inquiries, you may contact Attorney Zhou at jzhou@hooyou.com.
Founded in 1996, Zhang & Associates, P.C. offers legal services to clients worldwide in all aspects of U.S immigration law. We have successfully handled over ten thousand immigration cases.
At Zhang & Associates, P.C., our attorneys and supporting professionals are committed to providing high-quality immigration and non-immigration visa services. We specialize in NIW, EB-1, PERM, I-485 I-130, H-1B, O, L and J cases. In the past
over twenty years, we have successfully helped over ten thousand clients get green cards. If you plan to apply for a green card, please send your CV to Attorney Jerry Zhang (info@hooyou.com) for a free evaluation.
Zhang & Associates, P.C.
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(02/21/2025)