Skip to main content

H-1B Alternatives Series: Concurrent H-1B Employment

In 2014, Massachusetts created the Global Entrepreneur in Residence Program (GEIR), a program meant to capitalize on the opportunities provided by concurrent H-1B employment.  Under this program, universities partnered with the Commonwealth to provide foreign entrepreneurs with relevant, part-time employment opportunities that carried cap-exempt H-1B status.  This part-time employment authorization then enabled the entrepreneurs to apply for a concurrent H-1B petition, which would also be cap-exempt, to allow them to work on getting their business off the ground.

GEIR was designed as a creative work around of the H-1B quota/lottery system.  Its genesis came from a 2008 memo issued by USCIS, which provided guidance on concurrent H-1B employment.  In this memo, USCIS clarified that an individual could be employed part-time by a cap-exempt employer while also being employed part-time by a cap subject employer, AND that second employer’s H-1B petition would not be subject to the typical H-1B quota/lottery system.

H-1B cap-exempt petitions include petitions filed by institutions of higher education as defined in section 101(a) of the Higher Education Act of 1965, nonprofit organizations or entities related to or affiliated with institutions of higher education; and nonprofit research organizations or governmental research organizations.  These qualifying institutions may petition for an H-1B nonimmigrant worker at any time and are not counted towards the numerical limitations for all other new H-1B petition filings.

In the memo, USCIS stated that an individual who was already employed at a cap-exempt institution could seek secondary employment with a private industry employer and that by virtue of their already existing cap-exempt H-1B, any secondary H-1B employment would similarly be cap exempt.  The scenario looks like this:

  • An individual receives approval for a part-time, cap-exempt H-1B with a university or affiliated research institution
  • The individual the receives a job offer at a private industry/cap-subject employer
  • The typically cap-exempt employer may file a part-time H-1B petition immediately and upon approval the individual in question may begin their concurrent part-time work

Rather than wait for comprehensive immigration reform at the federal level, the GEIR program showed how states can continue to be laboratories for immigration reform.  Although the program in Massachusetts is now in jeopardy, other states including Colorado are taking the lead in implementing nearly identical initiatives. Whether driven by state level programs or individual petitions, concurrent H-1B employment remains a viable “alternative” H-1B for some individuals.

Subscribe To Viewpoints