An alternative if you didn’t make the H-1B lottery
In my blog of April 10, 2013, I suggested alternative pathways to live and work in the U.S. if you didn’t make the H-1B cap lottery this year. One way is to be employed simultaneously at a cap exempt institution as well as in private industry with a cap subject employer. This suggested option generated a lot of interest judging by the number of inquiries to our office. Callers wanted to know how it worked.
A 2008 USCIS memo (Neufeld memo of May 30, 2008) ) clarified the parameters of concurrent H-1B employment as follows: If you have H-1B cap employment, full or part time, at a cap exempt institution – a qualified institution of higher education or research non-profit organization – then you can proceed to obtain concurrent H-1B employment with a cap subject employer without regard to the cap. That’s right! You do not have to be limited to the timing of the cap, which requires an April 1 filing date for an October 1 start date, or the fact that the cap has been exhausted for that particular year such that there are no cap subject H-1B visas to be had. The memo points out that it is perfectly legal and legitimate to continue this way as long as you do not cease employment with the cap exempt employer.
However, and we have researched this in depth, there does not appear to be any USCIS guidance as to what happens if you leave your cap exempt employer while there is still time running on the cap subject H-1B. Do you lose your H-1B status with the cap subject employer? At what point would you have to get back into the race and be counted? Since the memo is silent as to what happens, we are advising our clients to take a common sense, conservative approach. When your three years with the cap subject employer are up, and if you are no longer working for the cap exempt employer, it would be at that time that you would have to enter into the cap race – and possibly a lottery depending on the timing and number of applicants – for an H-1B visa for your next three years of H-1B extension with either the same employer or by changing/porting to a new employer.
It is also always worth bearing in mind that USCIS could interpret its own 2008 memo very narrowly at any point and rule that all H-1B employment ceases with cap subject employers once the concurrent cap exempt employment ceases. At the moment, the memo is silent on this point. Please check our website if you would like to review more general information on H-1B visas/work permits.