H1B Cap Season Reminder: Multiple H1B Filings for Same Beneficiary

As the H1B cap season for fiscal year 2019 (FY19) draws near, more and more inquiries are coming into the Murthy Law Firm from employers and foreign nationals who want to know whether an individual may be the beneficiary of more than one H1B cap-subject petition during the same cap year. In many situations, such multiple filings are permitted, if they are filed by different employers. However, a single employer typically may not file more than one cap-subject H1B petition for an individual. Similarly, an affiliated company, or even a business that has a more informal connection to the H1B-sponsoring employer (for example, two companies owned by members of the same family), may be prohibited from filing a cap-subject petition on behalf of the same foreign national.

Incentive to File Multiple H1B Cap Petitions

H1B petitions for FY19 will be filed from April 2nd through April 6th, 2018 for employment to begin October 1st, 2018. In light of the expectation that the number of these H1B petitions will, once again, greatly exceed the annual limit, or “cap,” foreign nationals naturally wish to increase their chance of selection in the H1B lottery. Because this is a random lottery, being listed as the beneficiary in multiple petitions potentially can work to one’s advantage. However, there are limitations.

H1B Multiple Cap Petitions: What is Acceptable?

The law permits a foreign national to be the beneficiary of more than one cap-subject H1B petition, provided that there is a legitimate and actual business need for each petition. This means, for example, that two unrelated companies could file H1B cap-subject petitions for the same beneficiary for separate positions. This also means that two related companies may be able to file for the same beneficiary. These two companies, however, must each be prepared to establish that there was a legitimate, actual business need for filing both of the petitions. If they cannot establish such a need, both petitions typically would be denied, and/or prior H1B approval could be revoked by the U.S. Citizenship and Immigration Services (USCIS).

H1B Multiple Cap Filings: What is not Acceptable?

A single company cannot file multiple cap-subject petitions for the same individual. Similarly, related or affiliated companies cannot each file cap-subject petitions for the same beneficiary, unless there truly are two separate job opportunities that can be clearly documented. Companies choosing to file in this manner must be able to demonstrate that each petitioning company has a genuine, distinct job opportunity available. Petitioners should understand that such cases tend to be closely scrutinized by the government, and the onus is on the companies to convince the USCIS that the multiple filings were not submitted in order to gain an advantage in the H1B cap selection process. If the government is not swayed by these arguments, the USCIS can deny or revoke all H1B petitions the related companies filed for the foreign national.

Companies Acting in Concert

One trouble spot that arose during the fiscal year 2015 cap season was that the USCIS began to focus on multiple H1B petitions filed by different companies for the same position at the same end-client with the same beneficiary. The USCIS began to carefully review such cases, even in situations where the petitioners were not related to one another, in the legal, corporate sense. While the companies may not have shared any common ownership, the USCIS has determined that such cases can be denied based on the premise that the companies are affiliated by way of acting in concert. In other words, the USCIS can deny such cases based on evidence that the petitioners appeared to have worked together to file the cases in order to increase the odds that a beneficiary would be selected in the lottery. This was discussed in more detail in the MurthyDotCom NewsBrief, NOIDs for ‘Virtually Identical’ Cap-Subject H1B Petitions (25.Sep.2014).

Conclusion

There are situations in which it is perfectly permissible for an individual to be the beneficiary of more than one cap-subject H1B petition. It is important to understand when this is acceptable and what type of situations will likely result in denial or revocation of all H1B petitions filed by those companies for the same individual. Those with questions about multiple cap-subject H1B petitions are encouraged to schedule a consultation with a Murthy Law Firm attorney.

While some aspects of immigration have changed in significant ways in the years since MurthyDotCom began publishing articles in 1994, there is much that is still the same. From time to time, clients of the Murthy Law Firm are referred to articles, like this one, which remains relevant and has been updated for our readers.

 

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Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.