Multiple H-1B Cap Petitions for Same Beneficiary
In matters of multiple H-1B petitions filed for the same beneficiary, last month the Administrative Appeals Office (AAO) ruled, in a non-precedent decision, that “related entities” shall be interpreted beyond legal relations. Although the decision is not legally binding for USCIS, the case indicates that USCIS intends to crack down on petitioners attempting to beat the lottery system.
Multiple H-1B petition for the Same Beneficiary
Each fiscal year, the total number of H-1B visas issued may not exceed 65,000 (additional 20,000 for those who have an advanced-degree from the U.S.). Once the filing cap is reached, a lottery system selects a lucky few recipients for the fiscal year. To stack the deck in their favor, USCIS found that multiple petitioners attempt each year to file for the same beneficiary. With more than one petition filed for the same beneficiary, these beneficiaries tend to have a greater chance of receiving the H-1B visa. However according to USCIS, “An employer may not file, in the same fiscal year, more than one H-1B petition on behalf of the same alien.” Additionally, subsidiaries or affiliates, or “related entities,” may not file concurrent H-1B petitions without “legitimate business need.” If suspected that an affiliate or subsidiary of the same organization filed more than one petition without a legitimate business need, then USCIS can send a RFE, notice of intent to deny, notice of intent to revoke. Before the AAO ruling, the “related entities” largely meant a legal relationship existed between the two entities.
Matter of S-S-INC
In the Matter of S-S-INC, the petitioner attempted to hire a “programmer analyst” by filing a H-1B petition. Another petition was filed for the same beneficiary by another petitioner, C-LLC. Since the two companies intended to send the same H-1B beneficiary to the same “end-client,” USCIS found that the two entities were “related entities.” USCIS reached this conclusion even though C-LLC and S-S-INC had no legal relationship.
With the upcoming Fiscal Year 2019 H-1B cap season, employer should be mindful of this decision and should not inadvertently scuttle their employee’s chances of obtaining the H-1B status.