By Kaitlyn Garcia, J.D. | Immigration Attorney | Houston, Texas
USCIS released a new memo last Friday, March 23rd, in light of a new decision that came out of the Administrative Appeals Office (AAO), Matter of S- Inc. The memo explains in short that two H-1B petitioners cannot file two separate H-1B filings in the H-1B lottery that are for essentially the same job opportunity to the same beneficiary. The job opportunities made by each employer must not be speculative and must be materially distinct if two petitioners are filing for the same beneficiary in the lottery. This prohibition is found under federal regulation 8 C.F.R. 214.2(h)(2)(i)(G), AKA the "multiple filings bar."
What is the multiple filings bar? What exactly is prohibited?:
The multiple filings bar prohibits multiple H-1B filings by "related entities (such as a parent company, subsidiary, or affiliate). "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.
To illustrate what exactly is not allowed: The companies in the AAO decision filed two separate H-1B petitions in the same fiscal year lottery for the same project. The company that appealed was a software development and consulting firm and basically triggered the multiple filings bar under federal regulations and had their H-1B revoked because their H-1B filing was for the same project that another company also filed an H-1B for. These two companies filed separate petitions and included documentation for the same end-client through the same vendors. The company ended up having their H-1B revoked as a consequence per the multiple filings bar.
The bottom line of the memo: USCIS reminds that in order to promote fair and orderly access to H-1B visas, federal law prohibits H-1B petitioners from trying to improve their chances of winning in the lottery by submitting multiple petitions on behalf of the same beneficiary without a legitimate business need. H-1B petitions cannot be filed during the same fiscal year for the same Beneficiary to work in substantially the same job for the same end-client.
The memo also notes that a single employer may not file more than one cap-subject petition for the same beneficiary. If an employer has two or more job offers for distinct positions, USCIS explains that a petitioner could file one initial petition and then if accepted under the cap, file an amended or new petition for concurrent employment.
Any questions or comments regarding USCIS' Policy Memorandum regarding multiple H-1B filings can be directed to Kaitlyn@kngarcialaw.com.