H1B Visa Duplicate Multiple Filings by USCIS New Memo 2018

USCIS H1B Duplicate Filing, Multiple Petitions Rule – What’s Not Allowed ?

In H1B Visa by KumarUpdated : 65 Comments

We have seen H1B lottery for the past few years now, 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, this is more true even with the New H1B Registration Process from FY 2021 .

On March 23rd,  2018 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. Previously, USCIS gave news alerts  indicating changes like More H1B Site Visits, Level 1 Wage, Email to Report Fraud companies .   All of these 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. This applies to new H1B registrations as well.

  • 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.Duplicate H1B Filings by one company - Scenario 1
  • 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.Duplicate H1B Filings by two companies Related - Scenario 2
  • 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.Duplicate H1B Filings by two companies that are not related - Scenario 3

What we have shown 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 policy memo ?

References

   

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Comments ( 65 )

  1. Sai

    Hi Kumar,
    I applied for H1B Visa Extension in Premium Processing from Employer A for End Client X. I received a RFE quickly within 10 days. I responded to the RFE within 90 days and have been waiting for approval. It has been nearly 150 days since i answered my RFE in Premium Processing. My employer and lawyer raised a service request for my petition and the USCIS hasn’t responded to it. Totally it has been 240 days already since my Initial H1B expired. Legally, I should stop working under further notice. My Employer A is planning to refile the H1B Visa Extension/Amendment in Premium Processing for the same End Client X in hoping for a quick decision since the first petition got held up without any response from USCIS. Will there will be an issue if second petition gets approved before the first? Thanks.

    1. administrator
      Kumar

      Sai,
      It should be fine. As you have been with same employer, it should be fine. But, the trick is for the second one, not sure, if they will give you the I-94 as you are not in legal status and period of authorized stay.

  2. Sekhar

    Hi Kumra, can you please answer the below scenario.

    I am working for employer A for client X. As my H1B visa expiring in next 2 months my employer A has filed H1B extension in regular processing very recently.

    Now, employer B who also works for client X wants to transfer my visa and started filing my visa in Premium processing. Will it be a problem for getting the transfer approved for employer B because of multiple petitions for same client ?

    1. administrator
      Kumar

      Sekhar,
      No, it will not as it is not a duplicate situation for Lottery and a transfer. As long as the job is genuine and you fit for it, should be fine.

  3. Agasthya

    I have a cap expect H1 B visa and was working on H4 EAD. 2 employers X and Y applied to activate and change my status from H4 to H1 visa for different positions. I am currently in Period of Authorized Stay and my H1 visa for X is approved while “Y” is in RFE.
    I want to join company ‘Y’ when the RFE is cleared, but in the interim can I start working for X since the visa is approved, in case the RFE visa gets rejected?
    If the RFE clears, then can I jump from X to Y or should I then apply for H1 visa transfer?

  4. Bharti

    Two different consultancies registered for me H1B 2020. Both informed me that I selected in lottery.

    Can I ask both the consulting firm to file my petition as both are not related and have different clients.

    Please suggest as this my first chance and I am trying since last 5 years but no luck.

    1. administrator
      Kumar

      Bharti,
      Well, as long as they were bonafide offers and there are different jobs available, you maybe fine…Many try to game the system with multiple filings by using consultancies, in that case, USCIS may scrutinise more…Talk to your attorneys

  5. Shivam

    Hello Kumar,

    Can an employer pre-register for a prospective employee? I don’t have the job offer yet.

    Also, in case 2 different legitimate companies pre-register for a beneficiary (both are different roles, and the beneficiary will pick one company to work with), and lets say the beneficiary gets picked in the lottery, what happens then?

    I assume only one company can file the h1b petition, but is the other company breaking the law (since registration can only be done for an employee which intends to file the H1B if selected).

    Your help will be deeply appreciated. Thank you!

    1. administrator
      Kumar

      Shivam,
      Well, ideally, they should give you offer and then register…they may, but let’s say do not file H1B later, they can be in trouble as they sign under penalty of perjury when they submit saying that they will file H1B. To avoid issues, only go with one company that gives you offer and files for you…Still have a week to go. Read the FAQs of H1B Registration.

  6. Vaib

    ::: Parent & Subsidiary Client’s Location Related Query ::::

    My client ‘A’ with Location ‘X’ is subsidiary of Client ‘B’ of location ‘Y’. I wanna file for H1B Cap exempt for Client ‘A’ with Location ‘Y’.

    Is this valid petiotion as I am considering the location of parent client for subsidiary client with whom I am going to work with?

  7. Vaib

    ::: Parent & Subsidiary Client’s Location Related Query ::::

    My client ‘A’ with Location ‘X’ is subsidiary of Client ‘B’ of location ‘Y’. I wanna file for H1B Non subject cap for Client ‘A’ with Location ‘Y’. Is this valid petition as I am considering the location of parent client for subsidiary client I am going to working with?

  8. Abdulhameed

    Thanks Kumar, nice topic to touch specially some of us may be fall in the pits of the idea. My question s are:
    1. Does this rule apply to the H1B transfer?
    2. Regarding the “Duplicate H1B Filing – Scenario 3”, what are the criteria USCIS use to determine if the job is the same job? …

    I mean should I apply at company X on “Software Engineer” role and apply at company Y on “System Analyst” role to be in safe side?

    OR

    Do they compare the client as well?… in other words, 2 petitions for me as beneficiary each one by different company but both have similar role as “Backend Java Programmer”… is this safe or it will be considered duplicate petitions on the same job?

    OR

    They compare the job title + job description

    So, what’s the combination of uniqueness? is it Company + Beneficiary + Role Title + Role Description + Client?

    1. administrator
      Kumar

      Abdulhameed,
      The above is for anyone using the H1B lottery. They will look at clients names, roles, etc. They do not explicitly tell what they use to match, but they will catch fraudsters trying to game the system…

  9. Parin Amlani

    Hi ,

    My H1b got picked last year , as part of case review I got 2 RFE’s.
    The response to 2nd RFE was sent on 27th February. Decision is still pending.

    Can I apply / register for this year H1b lottery? Would it affect the decision of my previous case?

    Would this be called as an duplicate application?

    Thanks

  10. manu

    Hi,
    This time around since the registration process does not ask you for the job title while registering our profile for h1b, will it be an issue if I file with multiple companies which are no where related? Will this be considered as a duplicate application?

      1. manu

        It is not Microsoft or Google, but it is an offer that I would be given as a future employee if my h1 gets picked and approved by that employer. He has his own client to whom he is related to in some way so the client letter can also be provided by him during the process. In this case how will the situation be described? This time the process is so confusing that I’m unable to decide if I can file for just one h1 or a second one as well. Also, if USCIS thinks that this is a duplicate application, then do you have any idea on what basis does it consider this as duplicate without processing the application?

        1. administrator
          Kumar

          manu,
          It sounds fishy to me, it is your own discretion… If you have real full time offers from the companies like I said, then only apply.

  11. avi

    I recently got new full time job in a company, and that company doesn’t want to file H1 for this year, as per them its too late for processing. do i have any option that i can still appear in H1b lottery for this year? can i file h1b with different employer and then transfer it to my current employer latter?

      1. avidesai

        Hello Kumar,
        Thank you for the reply,
        As you mention that i have option to go for other employer,
        Can you give more information on that, how can i file H1 with other employer while working with my current employer?

    1. Sisha

      Hi I’m also in same situation but here my full time employer won’t consider h1b transfer or contract. My employer saying they will file my h1b but they have internal due date as February 15 and my joint date is March 9, what best to do

      1. nirav patel

        I have critical situation now.I do have 2 employer and both are different position and different client.Can I file 2 h1 application from both employer with all different client and position in 2020? One is full time and another one is contract.I need a immediate help to take a decision .Could you please help me out ?

        1. administrator
          Kumar

          Nirav,
          You may apply, if they are really bonafide offers and not related at all…don’t just trust any IT bodyshop company that tries to apply and get you into trouble.

  12. Vinnie

    Hi Kumar,

    If 2 unrelated companies are willing to file H1B application for you for similar content but definitely not serving the same end client, would that be considered duplicate filing?(i.e. Microsoft and Google file for the same employer, both positions are software engineer job)

    Thanks

    1. administrator
      Kumar

      Vinnie,
      It should be fine as long as they are genuine offers. Again, this has been abused a lot by IT bodyshop companies, so ensure that they are genuine offers and not related.

      1. Vinnie

        Thanks for your response, Kumar. Should I understand it this way- usually what causes an issue is 1) they are fake Kobe offers made up by body shop companies 2) the two companies are somewhat related. It doesn’t matter if the positions are in the same field as long as it’s two genuine offers from two totally unrelated companies.

        Thanks

  13. Cherry

    Hello Kumar,

    Will this also apply if two companies (consultancies) are applying H1B & L1A during the same time.
    This year i.e. 2020 H1B Quota, Company B has applied H1B for me & i got picked in the lottery and it is still under processing.
    But right now, my current company A in India is filing my L1A (managerial job duties) petition with USCIS.
    Both these companies serve the same US enterprise.

    Do you think this will be considered as duplicate filing?

    1. administrator
      Kumar

      Cherry,
      Both are two different visa types, so nothing to worry. The duplicate filing applies to H1B, where many try to game the system during lottery. Just double check with your attorney to be safe.

    1. administrator
      Kumar

      You can, if it is a transfer…but, if you are filing for first time as cap subject, it can be considered duplicate. Either case, do talk your attorney and then act accordingly.

        1. administrator
          Kumar

          Nag,
          Technically they do not say anything on this…Example, if they are from Google and Microsoft, then you can…meaning, they should be genuine and not related by any means…

          1. Nag

            Hi Kumar,
            Reference to –> https://www.govinfo.gov/content/pkg/FR-2019-01-31/pdf/2019-00302.pdf ,

            Looks like this time registration process from march 1st through March 20th , 2020 is intend to eliminate duplicate H1 petitions no matter even it is from 2 different employers. Please let me know your thoughts on this.

            and see below points.

            USCIS does not anticipate duplicate registrations from both the petitioner and the beneficiary. As described elsewhere, DHS will be putting measures in place to discourage non-meritorious registrations, and will take appropriate action against those who do file non-meritorious registrations. USCIS is exploring a number of options for efficient operation, use, and maintenance of the system.

            The data collected during the H–1B Registration process will determine which petitioners will be informed that they may submit a USCIS Form I–129, Petition for Nonimmigrant Worker, as an H–1B cap-subject nonimmigrant petition. USCIS will collect the minimum amount of information needed to identify the prospective H–1B cap-subject petitioner and the named beneficiary, to eliminate duplicate registrations, and to match selected registrations with subsequently filed Form I–129 H–1B cap-subject petitions.

          2. administrator
            Kumar

            Nag,
            They do not say that explicitly. As it says non-meritorious, especially those filed by IT body shop companies, that abuse the system. As I said, there is no clear guidance…If you have bonafide offers from totally different companies that are reputed and there is no connection, you may. It is up to your discretion. Discuss with your attorney, if you want more info.

      1. HS

        Hi Kumar, is there any rule in USCIS which indicates that this is fine? Filing two petitions from two different employers that are not related

  14. TAS

    Hello,
    I had applied for H1 via 2 consultancies as this was my 3rd and final attempt.
    Both of those petitions got picked in the lottery. In this situation, I have a few questions:

    1) Is there any issue with 2 applications? [both consultancies are unrelated]
    2)I got a Contract job via 1 consultancy and would thus be required to fill out the cap gap application through them. What if my 2nd H1B [via 2nd employer] is approved?
    Will there be an issue if the cap-gap extension is filed via 1 employer and h1 is approved via 2nd?
    3) if i decide to go ahead with premium processing with 2nd employer, i have to fill out i983, which will have employer 2’s details. Will it be an issue as cap-gap has employer 1’s details?

    1. administrator
      Kumar

      If both the jobs are fully not related, then should be fine. If the end client is same or the companies are related in some way, then it can be considered as duplicate petitions.

      1. Sandy

        Hi Kumar,if we file two h1 b -2020 FY petitions from company x and company Y ,both are not linked in any way.will there be any chance to get the 2 applications revoked ?
        Looking forward to hear from you asap .
        Kumar, your email or mobile contact please.thanks

        Sandy

        1. administrator
          Kumar

          Sandy,
          Very likely no, if the offers are real and the companies are real like Google, Microsoft. If they are related in some way, then it will an issue.

  15. Peter A

    Would all of the above scenarios also apply to cap-exempt companies?

    My scenario is the same as “Multiple H1B Petitions filed by Different Employers Not related directly, but for Same Job”, with a H1B application underway, however I have received a much better job offer from another cap exempt company.

    If not allowed, what is the best way to proceed?

    Thanks

    1. administrator
      Kumar

      Well, if you have it from a cap exempt University or non-profit research entity, it is a better option than risking duplicating filing denial…It is your discretion, talk to your attorney and then make an informed decision.

  16. Lasttimer

    Hi

    My employer filed a new H-1B CAP Petition While A Prior Petition under 2018 Cap is still Pending. I am yet to receive the lottery results of the new year.

    Is this allowed? Will it be considered duplicate filings

    Thanks

    1. administrator
      Kumar

      Very interesting, you mean, you were selected in FY 2019 and still in processing ? That’s really long, you should upgrade it to PP and get it done.
      It will not be duplicate..

  17. Santoosh

    Hello,

    I have a query regarding duplicate petitions. I recently moved to USA to work for Company A with Client X. Now I got a offer from Client Y. So I Joined Client Y with layers ( Company A -> Company B -> Company C -> Client Y). My employer (Company A) has filed an amendment petition, which is still in process. Now Company C want me to join them. I am thinking as layers will be avoided (Company C -> Client Y).
    In this case Company C can file H1B transfer petition for Me? As my current employer (Company A)’s amendment petition is still in process. Will this be a duplicate petition? This is a change of employer (Company C).

    How can I proceed in this case? Kindly help me to deal with situation.

    Thank you.

  18. Ajith

    If I file two petitions one from my current employer for an end client and second petition from completely different employer for the same end client and substantially similar position, would be considered duplicate filing if only first application gets picked up in lottery and second is not?

  19. Rapper

    So simple..Apply H1 from ur employer with ur job..apply another one with another diff employer keeping In-house project.. do as much as 6 more applications. As per rules, 7 companies can apply h1 for an employee at same time. Its up to the person to choose if all those pics up. Like I get an offer from HP, Apple, Google, Facebook , Dell, Sprint, BCBS. All apply my H1 with their positions. But i only select based on my interest

  20. Who

    This is interesting. So here’s a hypothetical situation. Walt Disney owns Pixar, LucasFilm, ESPN, and 21st Century Fox. 21st Century Fox owns National Geographic, Fox Searchlight etc etc. So if a person gets a job with more than one of these companies and they apply for their H1B, it would get rejected?

    BTW only a handful of big companies in media and technology own almost all the successful smaller ones. Facebook owns Instagram as well as WhatsApp, for example.

    One one hand this may push these companies to hire more citizens given this risk.

    But if the purpose of the new legislation is also to prevent wage deflation in the H1B tech sector, and its repercussions in the wider market, wouldn’t restricting the ability of potential H1B employees to shop around for best offers deflate it further?

  21. sricharan

    there is nothing new here. all this rules are already there except setting up a new office do the same old stuff. i dislike the post of communicating it in a wrong way as if it is all new.

  22. Hope

    Hi Kumar,

    Thanks for this information. This memo doesn’t say that it’s illegal to file 2 legitimate H1b petitions ( legitimate means with two different employers, different clients and different states, absolutely no relationship and real job offers) Is this correct?

    1. administrator
      Kumar

      Hope,
      Yes, it is not illegal, as long as the employers are really not considered as ‘related entities’ by USCIS. They exercise their discretion in deciding the ‘related entities’.

  23. 2019

    If the second petition is with contract house, the beneficiary will definitely be scrutinized! Reported people pay contract house to file extra petitions.

      1. administrator
        Kumar

        Milt,
        Well, it is hard to know how many duplicate petitions have been filed in the past. USCIS has not released any such numbers in the past. It will apply to all multiple petitions filings, that satisfy the above scenarios.

    1. administrator
      Kumar

      VK,
      Yes, this only applies to cap-subject petitions. Read the links in reference section, they point to original memo.

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