How does an employer file a concurrent cap-exempt H-1B visa?

What is a Cap-Exempt H-1B Visa?

A cap-exempt H-1B visa is not subject to the annual quota or cap set by the U.S. government. This type of visa is typically granted to employees of nonprofit organizations, research institutions, and universities.

Why File a Concurrent H-1B Visa?

When a foreign national is already working part-time on a cap-exempt H-1B visa, they are allowed to hold an additional job with another employer under a concurrent H-1B visa. This allows them to work for multiple employers simultaneously, as long as they maintain their employment with the cap-exempt organization. Each employer must file a cap-exempt H-1B petition.

Steps for Filing a Concurrent Cap-Exempt H-1B Visa

1. Determine Eligibility:
   • Ensure the foreign national is currently in cap-exempt H-1B status and maintains employment with the cap-exempt nonprofit organization.
2. Gather Necessary Documentation:
   • For the Employee:
     • Passport copies
     • Current H-1B approval notice (Form I-797)
     • Latest pay stubs from the cap-exempt nonprofit employer
     • Updated resume
     • Copies of diploma(s) and transcript(s)
   • For the Employer:
     • Federal Employer Identification Number (FEIN)
     • Proof of ability to pay the offered wage
     • Job offer letter outlining the position, salary, and job duties
3. Complete the Labor Condition Application (LCA):
   • Post the LCA at the worksite for 10 consecutive business days. The LCA will be provided by the immigration attorney filing the cap-exempt H-1B petition.
   • Immigration attorney submits an LCA (Form ETA 9035) to the Department of Labor (DOL) specifying the details of the job, including wages and working conditions.
   • Ensure the LCA is certified by the DOL before filing the H-1B petition.
4. Work with an Immigration Attorney to Prepare and File Form I-129:
   • Fill out Form I-129, Petition for a Nonimmigrant Worker, and include the H Supplement and Data Collection and Filing Fee Exemption Supplement.
   • Attach all supporting documentation, including the certified LCA, job offer letter, and proof of the foreign national's current H-1B status.
   • Pay the required filing fees.
5. Submit the Petition to USCIS:
   • Mail the completed Form I-129 and supporting documents to the appropriate USCIS service center. The address depends on your company's location and the type of delivery service you choose.
6. Await USCIS Decision:
   • After submission, USCIS will issue a receipt notice and may request additional evidence (RFE). Be prepared to respond promptly to any RFEs.
   • Once USCIS approves the petition, they will send an approval notice (Form I-797), allowing the foreign national to commence employment under the concurrent H-1B status. Note: if an individual is currently in H-1B status and working, they will be able to start employment upon the petition being received by USCIS under H-1B portability.‍
7. Notify Cap-Exempt Employer:
   • Once you have received notice of approval, make sure to notify the cap-exempt organization.

Tips for a Smooth Filing Process

• Ensure Accuracy: Double-check all forms and documentation for accuracy before submission to avoid delays or denials.
• Stay Organized: Keep copies of all submitted documents and correspondence for your records.‍
• Monitor Deadlines: Be aware of any deadlines for submitting responses to RFEs and ensure timely submission.