Related Employers Barred from Filing Multiple H-1Bs for the Same Beneficiary

USCIS just released a new Policy Memo setting forth a new rule regarding filing of multiple H-1B petitions for the same foreign worker.  The new rule bars the filing of multiple H-1B cap-subject petitions by "related entities" for the same beneficiary.  

The meaning of "related entities" has been broadened to include something more than relationship through corporate ownership and control; factors such as familial ties, proximity of locations, leadership structure, employment history, similar work assignments, and similarities in supporting documentation, etc., will also be considered.   

If USCIS discovers that multiple H-1B petitions have been filed for the same beneficiary, the petitions will be barred form moving forward unless the petitioners can demonstrate a “legitimate business need."  In determining whether a legitimate business need exists, the job opportunity must be bona fide, be available to the beneficiary, and be materially distinct, and the related petitioners cannot be offering essentially the same job opportunity to the beneficiary. 

The Policy Memo, 2018-02 PM-602-0159, designates Matter of S- Inc., a recent AAO decision, as an adopted decision.  The petitioner in that case argues that the two companies involved were not related since they were established separately as two legal entities and had two federal employer ID numbers.   This argument might have worked under the old rule.  However, under the new rule pronounced by USCIS, the case was denied.  

In order to secure services of foreign professional employees to work for them, American employers submit H-1B petitions on April 1st every year to the U.S. Citizenship and Immigration Services requesting for permission for H-1B employment starting October 1st.  Due to the large number of H-1B filings, a visa lottery is usually employed by USCIS to select cases for further processing every year.  As competition for the limited visa numbers intensifies, some employers resort to questionable tactics.

Matter of S- Inc., was decided by the AAO on March 23, 2018, and the Policy Memo was released today, right before the filing of this year's H-1B cap cases.  The purpose of the new rule is apparently to thwart the use of similar tactics by petitioners to increase the chances of getting their cases selected in the visa lottery. 

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)