H1B Visa holders can work multiple jobs lawfully. Each job must also have its own approved H1B petition, based on independent approval from the second employer. Because of legal restrictions placed on H1B Visa holders, H1B Visa holders will not be able to take on freelance or part-time. The purpose of this article is to discuss and inform readers of the rules and procedures for working multiple jobs on an H1B Visa. Additionally, we will discuss some of the things that can go wrong when trying to do this.
How Concurrent H1B Employment Works
Having concurrent H-1B statuses means that an employee has multiple H1B-sponsored jobs at the same time. The U.S. Citizenship and Immigration Services has no issues with this type of employment arrangement, as long as both employers submit their applications to U.S. Citizenship and Immigration Services, and each application is separately approved. Your primary employer’s application will continue to be unaffected, and your second employer will send in a separate application.
In order to file your second petition, your employer will similarly begin by filing Form I-129, providing supporting documents, and paying fees. In addition, similar to filing your original H1B visa, your employer will need to show that your new position is also a specialty occupation. However, if you have been issued an H1B visa that has been counted toward the annual cap, you may file a Concurrent H1B Petition and be considered for processing, without having the new employer first being subject to the annual H-1B lottery.
USCIS does not restrict the number of hours you can work in total on an H1B visa. Although it may be normal for someone to work 40 hours per week, it is possible for you to work 30 hours for one employer and 20 for another, for example. The only limits to this are how long you can keep going (i.e., your own stamina) and the terms of your work contracts with each employer.
Requirements for a Second H1B Job
To be approved, U.S. Citizenship and Immigration Services (USCIS) have a set of specific criteria for all H1B jobs. To qualify for the second H1B job, it must also be considered a specialist occupation that requires at least a bachelor’s degree from a university. The second employer must pay the employee at least the prevailing wage for the second H1B job in their location. The first and the second jobs can be in two separate types of professions, as long as each will satisfy their particular H1B qualification criteria.
The second business takes care of all the paperwork involved in the application process as well. This includes filing through USCIS, as well as paying all application-related expenses. The typical expenses incurred are: base filing fee of $460, fraud prevention fee of $500, and the amount of the ACWIA training fee (which can vary from $750-$1500 depending on how big your company is) will also depend on what size company you own/operate. In addition to the above fees, if an expedited decision is required, an additional $2,805 will also be charged for the “premium” processing.
You may not begin working with your second employer until USCIS has approved their petition. If you begin working before you receive approval from USCIS, you are in violation of your immigration status. If you work even one day without authorization, this could create problems for you in future immigration applications. You should be aware of this timing requirement, as it surprises many people.
Documentation the Second Employer Needs
In order for the second employer to initiate the filing of your application, they must collect several documents for that purpose. These include proof of: the position calling for specialized knowledge and a minimum of a bachelor’s degree; ability to pay the prevailing wage; a copy of your valid passport; copies of your current I-94; and approved H1B petitions.
Before being able to submit an application to USCIS, an employer must first submit a Labor Condition Application (LCA) to the U.S. Department of Labor (DOL) and receive DOL certification. The LCA process typically takes about 7 business days to complete. The LCA forms allow an employer to certify that they will pay employees at least the prevailing wage as well as confirm that hiring you will not negatively impact any other workers. After the certification, the employer must post notice of the filing of the LCA at the place of employment for 10 calendar days.
What You Cannot Do on an H1B
The H1B visa is tied to your employer (the company sponsoring your Visa), so you can only work for them unless they file an approved petition on your behalf with USCIS. This means that you’re generally unable to do any freelance, independent consulting, or side hustle work while on an H-1B; however, there are some exceptions to this rule.
The following types of work are prohibited without separate authorization:
- Freelance projects for clients other than your H1B sponsors
- Independent consulting through your own business
- Contract work for staffing agencies without their own H1B petition for you
- Gig economy work, like driving for Uber or delivering for DoorDash
- Any paid work for companies that haven’t filed H1B petitions for you
Unpaid volunteer opportunities exist in a gray zone because USCIS has not provided explicit direction regarding their status. A lot of immigration attorneys will advise you not to enter into any type of work arrangement that involves giving out your professional services at no charge to an organization. If it appears to be employment-based then there is a potential for risk.
Self-employment has its own set of unique problems. Technically, you could open your own business and then have that new business apply for your H1B visa. However, USCIS pays increased attention to self-petition cases than they would do so for regular employer-employee cases. Additionally, when you own both sides of the relationship (as in this example), establishing that there is an employer-employee relationship becomes increasingly difficult.
Passive Income and Investments
H1B regulations don’t restrict passive income. Investment, rental property, dividends, and interest are acceptable forms of taxable earnings—you’ll be engaged in business activity to earn your paycheck whereas receiving rental income merely involves you paying taxes on what you receive without doing anything else.
There are many ways to earn money online; however, each of these methods will depend on your activities. For example, if you had a website prior to moving to the United States that produced ad revenue, then this may be okay; however, if you are actively creating content, engaging in e-commerce, or providing services for payment online, then you would be engaging in unauthorized employment.
Risks and Potential Problems
Having more than one job as an H1B holder presents many challenges. Each petition needs to remain active for you to continue working legally for all of your employers. If one of your employers reconsiders its sponsorship, ends your job, or closes down, you will lose that work authorisation. It is imperative that you have an alternative plan!
If you lose your job with one employer, it will affect the calculation of your total H1B status. You have 60 days after your H1B employment ends to find new H1B employment – but this applies to your total H1B status, not to each employer! Your situation will be more complicated if your primary employer fires you while you continue working for a secondary employer. Therefore, before you are terminated by your primary employer, it is advisable to discuss this matter with an experienced immigration lawyer.
The US Citizenship and Immigration Services (USCIS) can revoke an approved visa at any time when the approval was predicated upon certain facts that have subsequently changed, including:
- The occupation is no longer considered a specialty occupation;
- The employer is unable to pay the prevailing wage;
- The working conditions differ significantly from those approved by USCIS.
Therefore, it is essential to keep documentation to confirm that your actual work continues to be consistent with the approved petition.
When there is more than one job, you have more complicated income tax compliance. Because each employer will independently withhold taxes from your paycheck based on their expectations of your earnings, your final income may push you into a higher tax bracket than either of your employers expected. Depending on how much each employer withholds, you may also need to make estimated tax payments in order to avoid penalties. It may be a good idea to speak with a tax professional who handles H1B cases.
The Application Process Step by Step
There is a defined course of action for getting authorization for simultaneous H1B work. You can have a better grasp of how long things will take and what to avoid making errors on by comprehending each portion of the process.
To begin, identify a sponsor who is an employer. This may be the hardest part of securing sponsorship. The employer must believe that you are worth spending $2,000-$5,000 for your filing fees plus the attorney’s fees associated with your sponsorship application. Many smaller organizations do not understand concurrent H1B sponsorships; therefore, you might need to educate them regarding how this option can benefit both the organization and yourself, the potential employee. Some employers have company policies that prohibit them from providing future visa sponsorship to any applicant.
Employers collaborate with immigration attorneys in the preparation of the petition. They will gather the appropriate Documentation, certification of the LCA, and an evidence package. Preparation of the petition typically takes 2-4 weeks for standard; however, rush jobs will cause increased potential for errors.
Thirdly, the United States Citizenship and Immigration Services will receive and process your application. Depending on how busy the service centre is, this will typically take between 2-6 months. If desired, the applicant can also choose to pay an additional $2805 fee for premium processing, which guarantees a response from USCIS in 15 business days. There are three possible outcomes from the application: approved, denied, or a Request for Evidence (RFE).
If you get approval, you will receive a new I-797 Notice of Action. Keep this document in a safe location. Your I-94 remains unchanged because you are only adding a job as opposed to changing status and will have the authorization to work for both employers.
Part-Time H1B Positions
USCIS does not specify if H1B jobs need to be full-time; therefore both jobs may be part-time. You can have a combination of jobs (one part-time and one full-time; two part-time; or any other way). The prevailing wage and specialty occupation requirement will still apply for each of the jobs.
Prorating Part-Time Prevailing Wage Rates from Full-Time Rates
Part-Time Prevailing wage rates are prorated (calculated based) on Full-Time Prevailing Minimum wage rates; therefore, if minimum wage is at $80,000/year full time (40 hours/week) then a part time employee working 20 hours a week would be paid at least $40,000/year.
The U.S. Department of Labor provides employers the necessary information regarding current and projected annualized full time salaries and Hours worked in order to use such information for calculating the applicable minimum wage, (prevailing), rates for all employees.
There are many H1B visa holders who pursue part-time positions for two specific reasons: either to strike a more favourable work/life balance while continuing to maintain lawful status in the US, or to obtain experience through working part-time in other fields, while maintaining their full-time primary employment. The ability to hold more than one job is possible provided that the appropriate petitions have been filed for the part-time position(s).
When to Consult an Immigration Attorney
A professional will usually help you understand the various aspects to consider when establishing multiple Concurrent H1B’s. Your immigration attorney can help identify issues that might be overlooked and create a framework which can effectively minimize the risk associated with this type of arrangement.
There are some scenarios where you may want to seek legal advice from a lawyer if: 1) the second employer submits their petition before the first employer’s petition has been filed, 2) any of the employers have issues with the arrangement, 3) you receive a Request for Evidence, or 4) after the approval of one job, there were major changes in the job or 5) both jobs are ending likely in the near future.
For concurrent H1B cases, attorney fees generally vary anywhere between $1,500 to $4,000 based on where the attorney is located and how complex the case may seem. Typically the employer will pay these attorney fees in conjunction with the sponsorship process. Many employers have ongoing relationships with immigration attorneys who assist them in processing their cases.
Many immigration lawyers provide free or inexpensive consultation services. These can help you understand your circumstance before you decide to hire an attorney. A lawyer referral service can be found on the AILA (American Immigration Lawyers Association) website.
