We are the brink of the start of another H1B season for FY 2019, while many are filing one H1B petition and leaving their potential lottery chances to luck, some maybe trying to game the lottery system and do multiple filings to increase their odds of getting picked in H1B Visa Lottery. On March 23rd, USCIS published a notice saying that they are adopting a decision from Administrative Appeals Office (AAO) of S-Inc case, that will now apply for all H1B petitions, which is targeted to make it more difficult for employers to file multiple petitions and game the lottery system. Last year, USCIS gave a last minute news alert on March 31st, indicating changes like More H1B Site Visits, Level 1 Wage, Email to Report Fraud companies . All of these last minute changes are to get hold of the petitioners, who have been trying to take advantage of the loopholes in the system. Now, let’s look at new H1B duplicate filing changes in detail.
Background History of H1B Duplicate Filings
If you look at the historical H1B cap reach dates, lottery situation first occurred in year 2007 for FY 2008 quota. USCIS noticed duplicate filings by employers during that season and for the next fiscal year filings they issued a regulation in March 2008, to avoid employers filings multiple petitions for the same employee. Basically what the new regulation in 2008 was that “USCIS will deny or revoke multiple petitions that are filed by same employer for the same H1B Worker as they are considered duplicate and there will be no refund of the filing fee for these multiple petitions.” Also, one key distinction at that time was that, USCIS regulation did not prevent related employers (like parent company and its subsidiary) from filing H1B petitions for the same employee for different positions, based on business need. This key distinction is what has changed in the new 2018 adopted regulation.
What’s the New Adopted Regulation for Duplicate H1B Filings by Employers ?
USCIS at times adopts a decision from AAO to provide policy guidance for USCIS adjudicators. The current duplicate filings guidance is adopted from ‘Matter of S-Inc’ Case that was originally adjudicated on Jan 11, 2018. This policy memo adopted from this case adds on to the existing rules on duplicate filings.
Summary of the Policy Memo on H1B Duplicate / Multiple Petitions Filings.
Below is the summary of the adopted decision from March 23, 2018.
- An employer cannot file more than one H1B petition for the same employee/beneficiary, if the employee petition is subject to H1B cap.
- If USCIS believes that ‘related entities’ (such as parent company, subsidiary or affiliate companies, even with different Federal Employer Identification Numbers), have filed multiple H1B petitions for the same employee/ beneficiary, they will deny or revoke the approval of all H1B cap subject petitions filed by related entities for that employee/ beneficiary.
- USCIS clarifies that they consider companies filing H1B petitions as “related entities”, as long as they all apply for the same job or similar position at the same client. These companies may or may not be related through corporate ownership and control.
- USCIS says that unless there is a legitimate business need to file multiple cap-subject petitions for the same employee or beneficiary, they will deny or revoke the approval of all H-1B cap-subject petitions filed by “related entities” for that beneficiary.
- USCIS also says that a single employer cannot file more than one cap subject H1B petitions for the same employee/ beneficiary for different jobs or positions, even if there is a legitimate business need, as many can exploit the loophole and file multiple petitions.
- In scenarios, where there is a real business need for multiple positions for the same employee/beneficiary, USCIS suggest that the employer file an emended or new petition for concurrent employment after the petition is picked in lottery. single employer may not file more than one cap-subject petition for the same beneficiary even if there is a legitimate business need.
- USCIS has full discretion on deciding the “related entities”, when multiple petitions are filed for the same beneficiary or employee by different companies.
Since 2014, USCIS has been issuing more RFEs and NOIDs for identical petitions filed for same employee or beneficiary by potentially related companies, this was not enforced in all cases. This new policy memo re-iterates such cases and makes it formal guidance for USCIS personnel.
So, what does H1B Duplicate Filings means ? Simple Illustrations
To summarize on what means a duplicate H1B filing, I believe, it is much easier to understand, if we can illustrate in picture. Below are short descriptions and illustrations on what USCIS calls a duplicate filing.
- Multiple H1B Petitions filed by Same Employer is Duplicate Filing : A company or employer cannot file multiple H1Bs Petitions for the same employee or beneficiary. It is illustrated below.
- Multiple H1B Petitions filed by Different Employers Related is Duplicate Filing : Two companies or employers cannot file multiple H1Bs Petitions for the same employee or beneficiary that are related to the same parent company or are subsidiaries.
- Multiple H1B Petitions filed by Different Employers Not related directly, but for Same Job: Two companies or employers cannot file multiple H1Bs Petitions for the same employee or beneficiary that are not directly or indirectly related to each other but are applying for the same job or similar role at the same end client. It is illustrated below.
What we have showed above are some of the most common scenarios, but it is not limited to the above, it is up to the discretion of USCIS to decide, if the companies are related, when they find multiple H1B petition filings for a single beneficiary.
What are your thoughts on the new policy memo ?
- USCIS – 2018 Policy Memo Adopted Duplicate Filings
- USCIS Press Release March 2008 Multiple Filings H1B Rules
- USCIS FAQ – 2008 May – Multiple Filings H1B Regulation