Now that the H-1B cap season for fiscal year 2018 (FY18) is over, we are receiving inquiries from the employers and beneficiaries asking us if a foreign national may be a beneficiary of two or more cap-subject petitions.
United States Citizenship and Immigration Services (USCIS) has become increasingly strict on multiple H-1B petitions that are “identical” filed on behalf of the same beneficiary. In recent years, it has come to the attention of USCIS that in order to increase the foreign worker’s chance in lottery selection, different employers filed more than one H-1B cap-subject petitions for the same foreign worker with identical job title, job duties, and end-client. The law permits multiple H-1B filings for the same beneficiary, but the petitions cannot be filed by the same petitioner in the same cap year. In addition, the employers filing H-1B petitions for the same beneficiary cannot be related. If the petitioners are found to be related, such as a parent, subsidiary, or affiliated company, it is the petitioner’s burden to demonstrate that there is a “legitimate business need” for the multiple petitions and that the job positions, for which H-1Bs have been filed for, are distinct from one another. Such cases, however, receive higher scrutiny from USCIS.
We have read reports of USCIS issuing Notices of Intent to Deny (NOID) and Notices of Intent to Revoke (NOIR) for H-1B petitions that are “identical” filed for the same beneficiary. These notices list the similarities among the multiple petitions and essentially request for supporting documents, including proof that the employers are not related. If the employers are related, they must demonstrate that there is a distinct need for the position to fulfill’s the company’s business need. Please note that although federal employer identification number (FEIN) is a significant way to show that the employers are not related, USCIS can still conclude that the empoyers are working together to increase the beneficiary’s chance in the lottery. Should USCIS find that the evidence is insufficient or that the employers are not working in good faith, USCIS could deny all petitions filed on behalf of that beneficiary and/or revoke all prior H-1B approval the employers filed for the beneficiary.
It is important to note that there are situations that makes sense for the foreign worker to be the beneficiary of multiple H-1B petitions. The law permits this, but with the increasing demand for workers as the U.S. economy grows and the cap remaining the same, employers are finding ways to increase their petitions’ selection in the lottery, often through unlawful methods. Thus, USCIS has become more wary and places those petitions under greater scrutiny.
Under certain situations filing more than one cap-subject H-1B petition on behalf of the beneficiary is permissible. Feel free to contact us if you have questions about filing multiple cap-subject H-1B petitions on behalf of a beneficiary.