H1B petitioners get stern warning from USCIS: Don't try gaming lottery with multiple applications for same employee

This is just in Thursday morning, bright and early. With the new H1B filing season opening April 2, the US Citizenship and Immigration Services has made it clear in a policy memo released to public today that it's taking a sledgehammer to H1B petitioners who pile on multiple applications for the same prospective employee (called 'beneficiary') even if the additional applications come from a company with a different name.

Nikhila Natarajan March 29, 2018 20:07:28 IST
H1B petitioners get stern warning from USCIS: Don't try gaming lottery with multiple applications for same employee

This is just in Thursday morning, bright and early. With the new H1B filing season opening April 2, the US Citizenship and Immigration Services has made it clear in a policy memo released to public today that it's taking a sledgehammer to H1B petitioners who pile on multiple applications for the same prospective employee (called "beneficiary") even if the additional applications come from a company with a different name which may not be "related through corporate ownership and control".

Unless there is a "legitimate business need" to file more than one petition for a potential H1B worker, "USCIS will deny or revoke the approval" for that application, says the 5 page memo which comes exactly one business day before the filing season opens after Easter Sunday. Note that this policy applies only to those applicants who fall under the 65,000 cap and not for those applying under cap-exempt category of 20,000 H1B visas reserved for those with Master's degrees or higher academic qualifications from US Universities.

The case that USCIS has highlighted has a “programmer analyst”, two companies and one client.

Company S-Inc and C-LLC both filed H1B petitions for the same “programmer analyst”. It doesn't stop there. Both companies filed the application for the techie to work at the same client location.

From the regulatory side, the irritation is evident. Sample this pushback: "Petitioning employers sometimes try to improve their chances of winning the initial lottery selection by submitting multiple petitions on behalf of the same beneficiary without a legitimate business need to do so. USCIS regulations deter and penalize this tactic by requiring denial or revocation of all petitions for that common beneficiary filed by the same employer, or filed by “related” employers if any of them has not demonstrated a “legitimate business need” to file those petitions. The latter scenario gets more complicated when, as here, a petitioner demonstrates it is not “related” to the other employer through corporate ownership and control, but other factors evident from the record nonetheless demonstrate the existence of a relationship."

H1B petitioners get stern warning from USCIS Dont try gaming lottery with multiple applications for same employee

The H1B in the Trump era is a whole new ball game/ REUTERS

Here's what a summary from the USCIS says: "For purposes of the bar to filing multiple H-1B cap-subject petitions for the same beneficiary, Matter of S- Inc. 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."

Towards the end of the memo, there are two lines that sum up both the policy outlook and the problem: "...the petitions were filed in the same fiscal year for the same Beneficiary to work in the substantially same position for the same end-client through the same two vendors."

Cases likes these and the underbelly of the work culture that they represent are the ones sullying the image of the H1B visa and the legit H1B worker in America.

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