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USCIS Cautions Against Different Employers Filing H-1B Cap Petitions for the Same Beneficiary to Increase Success

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A new policy memorandum issued by the United States Citizenship and Immigration Services (USCIS) makes clear that different H-1B petitioners may not file multiple H-1B petitions for a single beneficiary. This applies in a situation where different employers seek to file an H-1B petition for the same person.

According to the memorandum, in Matter of S-Inc, the Administrative Appeals Office (AAO) made clear in the decision that “related entities” are prohibited from making multiple H-1B filings for the same beneficiary. The memorandum clarifies that the term “related entities” “includes petitioners, whether or not related through corporate ownership and control, that file cap-subject H-1B petitions for the same beneficiary for substantially the same job. Absent a legitimate business need to file multiple cap-subject petitions for the same beneficiary, USCIS will deny or revoke the approval of all H-1B cap-subject petitions filed by “related entities” for that beneficiary.”

In light of this new memorandum, we caution petitioners against filing multiple H-1B petitions for the same beneficiary, even if the different petitioners are not related, where the cap-subject petition is being filed for the same beneficiary for substantially the same job.

In deciding whether petitioners qualify as “related entities” USCIS “must examine each piece of evidence for relevance, probative value, and credibility, both individually and within the context of the totality of the evidence, to determine whether the fact to be proven is probably true.” Matter of Chawathe, 25 l&N Dec. 369,376 (AAO 2010).

To guide their assessment on the “relatedness” of different business entities, USCIS considers several factors which include but are not limited to: familial ties, proximity of locations, leadership structure, employment history, similar work assignments, and substantially similar supporting documentation.

The decision in Matter of S-Inc, explicitly states:

“We decline to adopt a construction that employers could so easily circumvent through corporate law stratagems. Instead, we construe “related entities” to include petitioners, whether or not related through corporate ownership and control, who submit multiple petitions for the same beneficiary for substantially the same job. Whether two jobs are “substantially the same” is an issue of fact that we determine based on the totality of the record. Some factors relevant to relatedness may include familial ties, proximity of locations, leadership structure, employment history, similar work assignments, and substantially similar supporting documentation.”

The decision adds that, “Two unwitting companies would not likely have the requisite similitude to trigger the bar. But the more similarities in the records, the more likely the companies were seeking to undermine the purpose of the random lottery process.” This applies where the two companies were not acting as accomplices, in an unknowing or unintentional manner.

Behavior that will cause USCIS to suspect the integrity of an application includes situations where the employer has engaged in behavior to purposely circumvent the prohibition, for example where the different companies have coordinated to file multiple H-1B filings on behalf of the same beneficiary without a legitimate business need.

It goes without saying that employers are prohibited from filing multiple or duplicative H-1B petitions for the same individual.