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  • Article: Multiple Cap-Subject H1B Petitions. By Kevin J. Andrews, Esq.

    Multiple Cap-Subject H1B Petitions

    by


    What H1B Beneficiaries Need to Know for FY 2016

    The H1B Cap Season makes March a chaotic time for prospective H1B workers and their sponsoring employers who scramble to obtain one of the limited number of H1B visas issued every fiscal year. That is because only about 65,000 H1B visas are issued annually plus another 20,000 for petitions filed for beneficiaries who earned a U.S. Master’s degree.

    That number has not changed since Fiscal Year (FY) 2004, but demand continues to outpace supply as the U.S. economy grows. H1B beneficiaries and the U.S. employers who pay the filings fees are understandably frustrated that these career opportunities in the U.S. are reduced to a lottery system which, in FY 2015, provided less than a 50% chance of selection (not approval). (According to a USCIS press release dated April 10, 2014, USCIS received approximately 172,500 petitions for the 85,000 total numbers available. See, http://www.uscis.gov/news/uscis-reaches-fy-2015-h-1b-cap-0.)

    Multiple Cap-Subject Cases by the Same Employer or Related Entity is Prohibited Unless there is a “Legitimate Business Need” for “Materially Distinct” Positions.

    Several years ago, USCIS began to notice that some U.S. employers were filing multiple cap-subject H1B petitions for the same beneficiary to increase that individual’s chances of selection. In 2008, the Service issued an Interim Final Rule that created a new regulation prohibiting this practice to promote fairness in the random selection process.

    That regulation, found at 8 CFR § 214.2(h)(2)(i)(G), states that an employer or “related entities (such as a parent company, subsidiary, or affiliate)” “may not file, in the same fiscal year, more than one H1B petition on behalf of the same [cap-subject beneficiary]...” unless there is “a legitimate business need” to file multiple cap-subject H1B petitions for the same person working in a “materially distinct employment position.” The rule prevents employers from filing multiple petitions “under the guise that the petitions are based on different job offers, when the employment positions are in fact the same or only very slightly different.” See, Petitions Filed on Behalf of H-1B Temporary Workers Subject to or Exempt From the Annual Numerical Limitation, 73 Fed. Reg. 15389, 15391 (Mar. 24, 2008).

    Notably, the interim final rule and regulation are silent about the filing of multiple H1B petitions for the same beneficiary by unrelated entities who may appear to coordinate in other ways.

    USCIS Treats the Term “Unrelated Entities” Broadly Under 8 CFR § 214.2(h)(2)(i)(G)

    Last year, USCIS issued Notices of Intent to Revoke (NOIRs) approved H1B cap cases for beneficiaries with multiple H1B petitions filed by unrelated companies. The NOIRs listed all of the beneficiary’s Receipt Numbers and pointed out similarities between the H1B filings of each unrelated company. For example, some petitions contained same or similar language in the letters or on the companies’ websites, some cases were filed for the same end-client and others involved employee representatives who worked in both companies or in shared offices.

    USCIS also observed that H1B cap cases were often being withdrawn shortly after a beneficiary’s other cap case(s) were selected and approved, which may have raised suspicion about the true purpose of these multiple filings.

    Although 8 CFR § 214.2(h)(2)(i)(G) refers to “parent company, subsidiary, or affiliate” as examples of “related entities,” USCIS has interpreted the term much more broadly with the issuance of these NOIRs in FY 2015.

    NOIR responses last year included evidence that these companies were unrelated entities with different Federal Employer Identification Numbers (FEINs), but USCIS still revoked many petitions where it appeared that the companies acted in some coordinated way and/or did not adequately explain the similarities in their respective filings.

    Individuals applying for H1B status this year should consider these risks when thinking about having multiple H1B petitions filed on April 1.

    What Are the Risks if More than One U.S. Employer Files a H1B Cap Case for the Same Beneficiary?

    The lesson from the FY 2015 cap season is that these cases will receive a higher level of scrutiny even if there is a “legitimate business need” for all petitions and the proffered positions are “materially distinct,” especially if there is some level of cooperation or interaction between the unrelated H1B petitioners.

    If a prospective H1B worker does actually have two or more H1B legitimate job offers in materially distinct positions, USCIS may approve one or both of them. But USCIS may presume that the purpose of the multiple filings is simply to increase the beneficiary’s lottery chances and if there is any level of coordination between the corporate entities to support their suspicion, the beneficiary may want to carefully consider pursuing more than one cap case.

    My Cap Subject H1B Petition Was Revoked… What Can I Do Now?

    The good news is that a beneficiary of a revoked H1B under these circumstances does not need to wait until next April to get into H1B status again.

    If a beneficiary’s H1B petitions are revoked after October 1 under 8 CFR § 214.2(h)(2)(i)(G), s/he is still counted against the H1B cap and can have a U.S. employer file another H1B petition on his/her behalf. However, if the beneficiary is in the U.S. but not maintaining nonimmigrant status (e.g., after the cap-subject H1B petition is revoked), s/he will need to travel outside the U.S. and apply for an H1B visa based on a new H1B petition approval before returning in H1B status.

    Reprinted with permission.


    About The Author


    Kevin J. Andrews, Esq. Kevin J. Andrews, Esq. is an immigration attorney in the Special Projects / NIW Department at the Murthy Law Firm. He has worked on a variety of complex and unusual immigration matters involving a variety of immigrant and nonimmigrant issues, including nunc pro tunc petitions, I-140 revocations & I-485 denials, I-9 & public access file (PAF) compliance, DOL & FDNS investigations, visa assistance issues, and more. Kevin has also written several articles for MurthyDotCom on a variety of employment-based immigration topics and is one of the attorneys at the firm who works on EB2 I-140 filings based on exceptional ability.


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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