U.S. Citizenship and Immigration Services (USCIS) has directed personnel to reject all multiple H-1B petitions filed by related employers for the same beneficiary in the H-1B lottery, which begins on April 2.
USCIS publicly released a policy memo this week that offers guidance to personnel in evaluating multiple H-1B petitions for the same prospective employee. Based on an Administrative Appeals Office decision issued in January, the guidance aims to level the playing field for companies seeking H-1B visas.
Two outsourcing companies each filed H-1B applications for the same candidate for the same job at the same client. USCIS denied both H-1B applications. Immigration law prohibits “related entities” from filing multiple H-1B petitions in the same lottery for the same prospective employee to fill substantially the same job unless there is “a legitimate business need.”
One of the companies—identified only as S- Inc.—sought to get USCIS’s denial decision overturned.
S- Inc. contended that “related entities” are only those connected through corporate ownership or control, such as a parent company, subsidiary, or affiliate. It asserted that S- Inc. and the other company, C- LLC, were distinct entities under separate ownership and control. And it submitted evidence of that, including separate articles of incorporation, stock certificates, and federal tax returns. Moreover, S- Inc. argued that because C- LLC had withdrawn its H-1B petition, S- Inc.’s petition should be reconsidered.
However, the Administrative Appeals Office upheld the denial decision.
USCIS argued that “related entities” include all petitioners—whether or not they are related through corporate ownership or control—that submit multiple petitions on behalf of the same prospective employee for “substantially the same job.” While S- Inc. and C- LLC appeared to be separate companies, USCIS found a relationship existed between the two companies.
The H-1B petitions submitted by S- Inc. and C- LLC contained very similar and even identical supporting documentation. Both companies assigned the H-1B candidate to the same end-client through the same vendors. Moreover, USCIS found that both companies failed to show “a legitimate business need” for doing so.
“Two unwitting companies would not likely have the requisite similitude,” the policy memo states. “But the more similarities in the records, the more likely the companies were seeking to undermine the purpose of the random lottery process.”
The policy memo notes that an employer may extend the same H-1B candidate two or more job offers for distinct positions with a legitimate business to do so if the candidate is exempt from the lottery. H-1B candidates exempt from the lottery include those seeking specialty positions at universities or nonprofit research institutions.
USCIS noted that C- LLC withdrew its H-1B petition only after the denial decision was rendered. Therefore, it would not reconsider S- Inc.’s H-1B application.
H-1Bs Still Possible
Under the Trump administration, USCIS:
- Recently announced the suspension of premium processing for H-1B petitions that are subject to the lottery for the second time in two years.
- Imposed stricter rules for H-1B visa applications submitted by outsourcing companies.
- Stated that computer programming is not considered a “specialty occupation” eligible for an H-1B visa.
- Stepped up scrutiny of H-1B applications.
Despite this and other restrictions to the H-1B process, H-1Bs are still possible to obtain. Toward that end, we advise clients to:
- File one petition on behalf of an H-1B candidate even if related entities need to file a petition for the same candidate. After filing the initial petition, file an amended or new position for concurrent employment if needed.
- Invest more time and effort to present a strong case.
- Review the job description and duties, salary, and all work locations of the current or prospective employee.
- Remain in close contact with an immigration lawyer and the H-1B candidate to minimize delays if questions arise.
- Consider alternatives to an H-1B visa if under a time constraint to fill a specialty position.
We Can Help
The Alcorn Immigration Law team helps employers and their current or prospective employees with filing H-1B petitions, as well as devising alternative strategies. Contact us.