Challenging USCIS on H1B Fraud Findings Based on Multiple H1B Registrations

In recent years, the U.S. Citizenship and Immigration Services (USCIS) has focused heavily on the issue of foreign nationals who have multiple H1B registrations filed in the annual H1B lottery. The USCIS continues to closely examine many of the previously approved H1B petitions, issuing notices of intent to revoke (NOIRs) against employers that it suspects of having worked in concert with other employers to file registrations on behalf of the same individual.

If the petition is revoked, not only does this result in the foreign national’s cap number being taken away, but the USCIS generally also makes a fraud finding against the individual, which has a devastating immigration impact. But all hope is not lost, and the Murthy Law Firm has helped clients fight for justice against the USCIS in such cases.

USCIS Policy Prohibits Multiple H1B Registrations

The multiple H1B registration problem is based on a statement of guidance posted at the H1B electronic registration process, called Unfairly Increasing Chances of Selection. The statement says, when submitting a registration, the employer cannot have acted to unfairly increase the chance of the person’s selection. While there is nothing in the regulations that prohibits a person from being registered by multiple companies, the USCIS applies this policy to find fraud and revoke H1Bs based on this conduct.

Three Parts to USCIS Revocation Strategy

When the USCIS issues a NOIR regarding an employer filing multiple H1B registrations, three points typically are made. First, the USCIS argues the H1B registration regulation was violated because multiple employers registered the H1B beneficiary. The USCIS connects the Unfairly Increasing Chances of Selection guidance to the regulation by using other rules to incorporate the website policy as a requirement of the law violated.

Second, the USCIS asserts that two or more companies colluded or planned together to file multiple H1B registrations. They do this by listing purported commonalities ranging from using the same attorney to having similar owners, assuming therefore that the law was violated.

Third, the USCIS claims that based on the actions taken, both the petitioner and beneficiary committed fraud. With these three points, the USCIS concludes that the beneficiary should be subject to the H1B lottery and cap again.

Murthy Law Firm Experienced with Clients Subject to Fraud or Misrepresentation

A finding of fraud or material misrepresentation against the H1B worker or beneficiary differs from one made against the employer. As discussed in the MurthyDotCom NewsBrief, Impact on Visa from Misrepresentation and Fraud (12.Mar.2013), the foreign national is permanently inadmissible to the United States. Although the individual may qualify for a discretionary nonimmigrant visa waiver, the individual would need a qualifying relative to ever be able to apply for a waiver to become a lawful permanent resident (i.e., a green card holder).

Conclusion

Part of the strategy that the Murthy Law Firm has utilized is to argue that nothing was signed or submitted by the H1B worker during the H1B registration or petition filing process. The H1B worker may not even know about the multiple registrations until the NOIR arrives. These cases can be challenging to win at the USCIS level. But, given the stakes involved, it may warrant escalating the matter to federal court, to ensure that the beneficiary’s rights are truly protected. If you are impacted, please feel free to contact the Murthy Law Firm and consult with a knowledgeable attorney who can guide you in such matters.

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