USCIS Restrictions on Multiple H-1B Cap Petitions for Same Beneficiary by Related Employers

Update:  March 2024.   Starting FY2025 H-1B cap season, USCIS will switch to beneficiary-centric selection process which will count each beneficiary only once for registration selection purposes.  See more details about the new rule.

Update:  March 2022.   Starting FY2023 H-1B cap season, USCIS requires H-1B registrant employers to make an additional attestation which reads,

I further certify that this registration (or these registrations) reflects a legitimate job offer and that I, or the organization on whose behalf this registration (or these registrations) is being submitted, have not worked with, or agreed to work with, another registrant, petitioner, agent, or other individual or entity to submit a registration to unfairly increase chances of selection for the beneficiary or beneficiaries in this submission.

The purpose of this additional attestation is to strengthen the restrictions on multiple H-1B cap registration filed on behalf of the same employee by different employers.     While USCIS had banned multiple registration by different or affiliated employers, the March 2022 additional attestation now also includes multiple H-1B cap registrations for the same employee by different employers where there is an agreement or an effort to “unfairly increase the chances of selection.”    This attestation seeks to limit illicit understanding to file multiple H-1B cap registrations without a good faith job offer. This additional attestation, however, does NOT change the possibility of having multiple good faith job offers by multiple employers and the resulting multiple H-1B cap registrations. If USCIS finds that this attestation was not true and correct (e.g., that a company worked with another entity to submit multiple registrations for the same beneficiary to unfairly increase chances of selection for that beneficiary), USCIS will find that the registration was not properly submitted. Because the registration was not properly submitted, the prospective petitioner would not be eligible to file an H-1B petition based on that registration in accordance with the regulatory language at 8 CFR 214.2(h)(8)(iii)(A)(1). USCIS may also deny or revoke a petition based on a registration that contained a false attestation and was therefore not properly submitted. Furthermore, USCIS may refer the individual or entity who submitted a false attestation to appropriate federal law enforcement agencies for investigation and further action as appropriate.

March 2018 Multiple H-1B Cap Registration Restrictions

Previously, in a memorandum dated March 23, 2018, USCIS is restricting the ability of H-1B cap beneficiaries to obtain job offers and H-1B cap sponsorship by more than one employer where the employers are “related entities.”     Specifically, the memorandum expands the definition of “related entities” to include not only petitioners who may not be related through corporate ownership and control but also petitioners who file separate H-1B cap petitions for the same beneficiary for substantially the same  job.

The March 23, 2018 Memorandum and the Matter of S- Inc. Adopted Decision 

The memorandum serves to specifically designate as an Adopted Decision the recent Administrative Appeals Office (AAO) decision in Matter of S- Inc.   In this case USCIS addressed the prohibition of multiple H-1B cap filings by related entities as dictated by ” 8 C.F.R. § 214.2(h)(2)(i)(G):

An employer may not file, in the same fiscal year, more than one H-1B petition on behalf of the same alien if the alien is subject to the numerical limitations of section 214(g)(1)(A) of the Act or is exempt from those limitations under section 214(g)(5)(C) of the Act. . . . If USCIS believes that related entities (such as a parent company, subsidiary, or affiliate) may not have a legitimate business need to file more than one H-1B petition on behalf of the same alien . . . , USCIS may issue a request for additional evidence or notice of intent to deny, or notice of intent to revoke each petition. If any of the related entities fail to demonstrate a legitimate business need to file an H-1B petition on behalf of the same alien, all petitions filed on that alien’s behalf by the related entities will  be denied or revoked.

In Matter of S- Inc. AAO is expanding the definition of related entities to go beyond entities which have corporate relationship or common control and to include petitions filed by separate petitioners which do not share control or ownership but where the circumstances of the offered position between the two petitioners are “substantially the same.” In the facts of that case, two petitioners filed separate H-1B cap petitions for the same beneficiary, for the same job, for the same end-client, and through the same vendors.  AAO used these factual similarities between the two petitions to determine that the two petitions were by “related” employers.

What Should H-1B Cap Petitioners Do?

The regulations indicate that if USCIS determines that more than one “related” employer has filed H-1B cap petitions on behalf of the same beneficiary, all of these related H-1B cap petitions will be denied or revoked.    This makes it important for H-1B cap petitioners to understand and ensure that no related entity (as defined under the new memo) would file additional H-1B cap petition for the same beneficiary, or if there is such filing, to ensure that both petitioners are ready to explain and provide a strong business need justification.

Attorney Assistance with H-1B Cap Preparation and Submission

Our office will be happy to provide consultations or assistance with preparing and submitting petitions H-1B cap petitions. We offer flat fees to handle the entire application and you can contact us or request a flat fee quote. Alternatively, if you would like to schedule a consultation with an attorney to discuss a specific case (but perhaps without engaging us to help with the actual filing ), we offer phone consultations.

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Conclusion

The USCIS Policy and the Matter of S- Inc. decisions make it clear that USCIS will look carefully when multiple H-1B cap petitions are being filed by the same beneficiary by different employers.    H-1B cap petitioners should make efforts to ensure none of their H-1B cap beneficiaries are filing additional cap petitions by different employers in circumstances where such petitions may be deemed to be “related” (for example, for the same worksite and end client). Please do not hesitate to contact us if we can be of any help.    Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.