When H-1B lotteries were becoming the norm, an issue was raised regarding duplicate filings as a way to increase the chances of being selected in the lottery. In response, ten years ago USCIS announced a regulatory change to prohibit employers from filing multiple or duplicative H-1B petitions for the same employee. To ensure fair and orderly distribution of available H-1Bs, USCIS announced that it would deny or revoke multiple or duplicative petitions filed by an employer for the same H-1B worker and would not refund the filing fees submitted with multiple or duplicative petitions:
“(G) Multiple H-1B petitions. An employer may not file, in the same fiscal year, more than one H-1B petition on behalf of the same alien if the alien is subject to the numerical limitations of section 214(g)(1)(A) of the Act or is exempt from those limitations under section 214(g)(5)(C) of the Act. If an H-1B petition is denied, on a basis other than fraud or misrepresentation, the employer may file a subsequent H-1B petition on behalf of the same alien in the same fiscal year, provided that the numerical limitation has not been reached or if the filing qualifies as exempt from the numerical limitation. Otherwise, filing more than one H-1B petition by an employer on behalf of the same alien in the same fiscal year will result in the denial or revocation of all such petitions. If USCIS believes that related entities (such as a parent company, subsidiary, or affiliate) may not have a legitimate business need to file more than one H-1B petition on behalf of the same alien subject to the numerical limitations of section 214(g)(1)(A) of the Act or otherwise eligible for an exemption under section 214(g)(5)(C) of the Act, USCIS may issue a request for additional evidence or notice of intent to deny, or notice of intent to revoke each petition. If any of the related entities fail to demonstrate a legitimate business need to file an H-1B petition on behalf of the same alien, all petitions filed on that alien’s behalf by the related entities will be denied or revoked.”
But what if two “different” employers file an H-1B petition on behalf of the same person?
A new Policy Memorandum issued last Friday clarifies that the term “related entities” includes petitioners, whether or not related through corporate ownership and control, that file cap-subject H-1B petitions for the same beneficiary for substantially the same job. Absent a legitimate business need to file multiple cap-subject petitions for the same beneficiary, USCIS will deny or revoke the approval of all H-1B cap-subject petitions filed by “related entities” for that beneficiary.
I’ve explained previously that USCIS has considerable discretion to interpret the above regulation broadly, including in how it determines what qualifies as “related entities.” For example, an employer seeking to use separate entities with unique Federal Employer Identification Numbers (FEINs) to sidestep the regulation could trigger a denial or revocation, particularly when USCIS finds the companies coordinated to file multiple H-1Bs on behalf of a single beneficiary without a legitimate business need. I think now USCIS can go even further to deny or revoke when two employers file petitions for the same job (my hunch is that this is targeted to third-party placement situations).
Specifically, USCIS will be looking at the totality of the record. Some factors relevant to relatedness may include familial ties, proximity of locations, leadership structure, employment history, similar work assignments, and substantially similar supporting documentation. Two unwitting companies would not likely have the requisite similitude to trigger the bar. But the more similarities in the records, the more likely the companies were seeking to undermine the purpose of the random lottery process.