How to Handle H-1B Revocations Due to Multiple H-1B Cap Registrations

Many of our readers are aware of the extraordinary demand for first-time H-1B “cap” registrations over the past few years and especially after USCIS introduced a pre-registration system during the 2021 fiscal year.      Under the previous H-1B “cap” filing system, a petition would have to prepare and submit a full H-1B petition (with full set of fees) for consideration under the H-1B lottery;   starting 2020,  USCIS only requires a petitioner to “register” an H-1B candidate for consideration under the H-1B lottery by submitting a simple questionnaire and paying a much lower submission fee.

After this year’s H-1B cap registration period USCIS has reported that out of a total of 780,888 registrations, after removing duplicates and failed payments, there are 758,994 eligible registrations, an increase of about 63% compared to the prior year. USCIS has also released detailed statistics about the breakdown of registrants with single or multiple employers and USCIS is expressing concerns that the major increase in registrations by multiple employers for the same candidate may be a suggestion of fraud.    As a result, USCIS has been (and appears to be increasing their efforts) seeking to revoke (or deny) H-1B petitions with multiple H-1B cap registrations for the same beneficiary.

H-1B Cap Numbers and Breakdown of Registrations by Single of Multiple Employers for the Same Candidate

For the first time this year USCIS is releasing a breakdown in the number of registrations for the same candidate by a single or by multiple employers.

H-1B Cap Registration Attestations and Basis for Fraud Allegations

USCIS is mostly concerned by the sharp increase by registrations for the same candidate by multiple employers and the possibility of fraud involved in submitting multiple registrations for the same candidate by different affiliated employers.

As a reminder, related employers are prohibited from submitting H-1B cap registrations on behalf of the same candidate during a fiscal year.    USCIS has been trying to remind employers of the relevant rules at the beginning of each H-1B “cap” season but the rules and attestations required often seem to be missed or ignored.  Specifically, USCIS added an attestation by employers that 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.

USCIS’s Increased Enforcement Efforts – H-1B Petitions Receiving Notice of Intent to Revoke or Revocations

We have been seeing increasing number of revocation or intent to revoke notices issued by USCIS where there are indications of fraud or misrepresentation, especially with respect to the required attestations and multiple H-1B cap registrations.    To be clear, having multiple good faith job offers by multiple employers is not, itself, against the H-1B cap attestations.   A qualified candidate can certainly receive multiple good faith job offers by multiple (unrelated) employers and each of these H-1B cap registrations is likely to be acceptable to USCIS even if more than one registration is selected.

Rather, USCIS is looking for additional indications of coordination or collusion during the H-1B cap registration process.    If there are multiple H-1B cap registrations for the same candidate in order to increase their chances of selection or if they worked with another company solely to increase their chances, then USCIS would consider the registration as improper and if such registration is used to support an H-1B petition, USCIS will seek to deny it (if pending) or revoke it (if already approved).

Common Factors Cited by USCIS Suggesting “Collusion”

USCIS tracks candidates with multiple registrations; however, the sole fact of multiple registrations does not always trigger additional scrutiny.     USCIS looks to additional factors that would suggest fraud or misrepresentation during the submission process.

For example, USCIS looks at the companies involved for common ownership (for example, organizational chart showing overlap of officers or employees),  familial or corporate relationship (for example, owner of one company is a manager or a signatory of another), common service providers (such as landlords, accountants, lawyers),  common or similar addresses (sharing an office suite, or having the same registration address), similar websites or public information (including social media), submission of the registrations by the same IP address (for example, registrations by multiple registrations not submitted by a lawyer which were submitted by the same IP address), and many others.      When such commonality between multiple H-1B cap registrants is found, USICS may take adverse action.

Sample Revocation Allegation Language

Below is sample USCIS H-1B revocation template language:

USCIS reviewed the petition, the registration data, and additional resources and determined that the petitioner has colluded with another company during the registration process to unfairly increase the chances of selection.  The [petitioner] shares the same registered agents/ executives and/or has a familial link to the registered agents/executives with the following organization _____.  USCIS found ______ and the petitioner are linked companies as indicated by open-source information _______, the website for _____.

Similarly, USCIS looks for more subtle indications of collusion such as reusing projects, end clients, or even using the same boilerplate application documents, including employer support letters,  itineraries, or even using the same attorney to submit the petitions.

USCIS reviewed the petition, the registration data, and additional resources and has determined that the petitioner has colluded with another company during the registration process to unfairly increase chances of selection. The [beneficiary] was registered for the FY 2023 CAP by petitioner _____. The petitioner, ___, shares the same registered agents/ executives and/or has a familial link to the registered agents/executives within the organization. The companies were related through financial transactions, contracts, G-28 attorneys, boilerplate support letters, and shared employees. They also made [100+] overlapping H-1B Registrations, including the registrations for the beneficiary. Based, on the aforementioned companies you have not provided enough evidence to demonstrate that you have a valid offer of employment.

How to Defend Against Notice of Intent to Revoke or Revocations Based on Multiple (Improper) H-1B Cap Registrations?

The allegations raised in each notice seeking to revoke (or deny) an H-1B petition will be substantially different simply because each case is very fact specific.    Our office has advised multiple registrants (and employees) over the past month on this topic and, as a general matter, one of the best defenses is to demonstrate that the job offer by each employer is legitimate and based on good faith.      Additionally,  we recommend rebutting carefully and completely each of the allegations of collusion or fraud/misrepresentation that may be raised by USCIS.    Finally, if USCIS alleged misrepresentation or fraud in their notice, it is very important to seek to rebut any such allegations to avoid finding of fraud or misrepresentation as it may have major negative consequences to both employer and candidate.

Job Offers Are Legitimate and Made in Good Faith.   One of the key arguments is to explain and document that each of the multiple job offers giving rise to the multiple H-1B cap registrations is valid, legitimate and made in good faith.    Among the key documents are job posting copies, resume/CV submissions or job applications, documentation of interviews conducted,  compensation/benefits negotiation,  offer letters or other hiring documents and, where applicable, evidence of commencing and holding employment (such as pay stubs).   It is very important to put each of these documents in context and to explain to USCIS that each of the job offers is legitimate and made in good faith.    Again, it is permissible for a candidate to have multiple job offers and H-1B registrations as long as they are in good faith and made without collusion.   In our experience, this argument is perhaps one of the strongest ways to push back against a revocation.

Rebutting USCIS “Collusion” Arguments Fully and Completely.   In a notice to revoke USCIS will likely allege a number of indications of improper collusion or agreement between the petition and other company/companies.    It is important to address each and every single one of them.   For example, a Notice of Intent to Revoke may allege that two H-1B registrants share the same attorney, that the H-1B petition documents are similar in formatting and contents.     A possible answer may be that the two employers actually use the same attorney for their immigration work based on longstanding and ongoing relationship and that the attorney can attest that they are not aware of any agreement between the companies to submit multiple registrations for the same candidate.    Also, the similarity of the H-1B petition documents may be based on the fact that the same attorney has prepared the multiple petitions independently for each employer and that the lawyer follows their standard petition protocols.

Challenge USCIS Using Attestations Instead of Proper Rulemaking.   Depending on how the revocation/denial notice issued by USCIS is structured,  it may be possible to argue that USCIS lacks authority to impose additional requirements outside of their proper rulemaking process especially when there are rules which do allow multiple registrations by different companies.   Essentially, the argument would focus on how much coordination there is between the alleged multiple registrant companies and whether the revocation solely relies on multiple registrations or there are other indications suggesting collusion.

Avoiding Fraud/Misrepresentation Finding.   A finding of fraud or willful misrepresentation should be avoided at all costs because it can cause major challenges to the candidate (bar on future US entry) and to the employer (extensive scrutiny leading to higher RFE/denial rate, debarment or even criminal prosecution).      It is important to carefully analyze the revocation or denial notice and determine whether there are USCIS allegations of fraud or willful misrepresentation.    If there are, the petitioner should very carefully and systematically submit a response in an effort to rebut them.   This is important even if the employer no longer wishes to pursue a petition on behalf of a candidate.

Attorney Assistance with Preparing NOID/Denial Responses

We have been very deeply involved in H-1B cap subissions, including multiple cap registration issues, and we feel that we have been able to understand the facts and documents USCIS adjudicators expect  to see in order to issue an approval (or avoid revocation).    Our office will be happy to provide consultations or assistance with responding to this (or other) kind of NOIR/RFEs.    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 RFE filing), we offer phone consultations.

Conclusion

The multiple H-1B cap registration issue is likely to persist as USCIS finds the time to review and scrutinize petitions which may have already been approved and in effect for months (or years).    We caution employers who are affected by the multiple H-1B cap registration issue (or who are preparing new petitions) to carefully consider and prepare their government submissions.

Our office will continue monitoring related developments and provide updates.    Please do not hesitate to contact us if we can be of any help in preparing or otherwise assisting with H-1B petitions or revocation/denial notices.    Also, please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topic.