Federal regulations prohibit the filing of more than one H-1B petition for the same beneficiary in the same Fiscal Year, regardless if the filing is adjudicated by a parent company and its subsidiary or related entity. However, some petitioners may be unsure if the company filed more than one petition, particularly if a petition for the previous fiscal year remains unadjudicated. While premium processing for most visa classes has been reinstated for Fiscal Year 2019 (FY19) and pending petitions are now be expedited, many petitions are still awaiting adjudication. As employers prepare for the Fiscal Year 2020 (FY20) H-1B cap-subject filing season, considerations must be made to ensure that pending FY19 petitions do not subject the company to the penalties of multiple filings.
Pending FY19 & New FY20 Petitions
Although many FY19 petitions have been resolved, some remain pending due to a Request for Evidence (RFE) or ineligibility for premium processing. Those employers who wish to file a petition for the same person for the same position for FY20 while another petition for FY19 remains pending must proceed carefully. Regulations dictate that employers may not file for the same petitioner in the same fiscal year, largely to prevent employers from unfairly filing multiple petitions to increase the likelihood of selection for the H-1B lottery. The regulation does not explicitly take issue with filings in differentfiscal years. However, given that adjudication of H-1B visas depends on the interpretation of USCIS officers, the duplicate filing could be flagged by government officials. To prevent this, employers may consider a different position for the beneficiary if one is available or present a memo outlining the circumstances of the pending FY19 petitions. If an employer submits a FY20 petition, and the FY19 petitions is approved before the FY20 petition, the petitioner should withdraw the unnecessary FY20 petition. If not, the beneficiary could be left with conflicting start and end dates for their H-1B visa. While this case would be an ideal scenario, it is unclear whether USCIS will adjudicate an FY20 petition while a FY19 petition remains pending. Please feel free to schedule a consultation to discuss the unique circumstances of any of your pending FY19 petitions.