By: Bruce E. Buchanan, Sebelist Buchanan Law

In Fontenoy Eng’g Inc. v. Baran (N.D. Cal., Jan. 13, 2020), a federal district court ruled against a San Francisco-based general engineering contractor, who had filed an H-1B visa petition for the same high-skilled worker at another employer. In so doing, the Court upheld USCIS’s denial of Fontenoy Engineering Inc.'s application for an H-1B visa for Mark Goan, an Irish national, because there were too many similarities in the applications.

Both companies were seeking to employ Goan for the same position and pay, in the same geographic area and industry, and were “nearly identical,” the USCIS said. Federal regulations prohibit the filing of multiple petitions for the same guestworker in the same fiscal year, with exceptions under certain circumstances.

Fontenoy was unable to prove it was an unrelated entity to JMB Construction, nor had Fontenoy demonstrated a “legitimate business need” to hire a civil engineer for a position more closely aligned with the duties of a construction manager. Moreover, both petitions were filed by the same attorney, and Fontenoy’s owner was a minority shareholder in JMB Construction and had previously worked there.

Under the Trump administration’s April 2017 “Buy American and Hire American” executive order, the USCIS and other federal agencies have increased efforts to stop visa fraud, especially in petitions for high-skilled H-1B visa workers.

The USCIS denied 24% of initial H-1B petitions for skilled guestworkers during the first three quarters of fiscal year 2019, matching a 24% denial rate in FY 2018 and up from just 6% in FY 2015.

Fontenoy argued that similarities between the companies’ petitions were due to San Francisco’s rapidly growing construction industry, where construction engineering graduates receive multiple job offers right out of school. The identical salaries of $72,700 offered in the petitions stemmed from the current prevailing wage for civil engineers, the company said, adding that the job descriptions for the two positions were similar because “a civil engineer’s job duties are the same irrespective of the company.”