Filing multiple H-1B petitions for the same Beneficiary
In the time that I have been practicing Immigration Law I have never found myself going into a H-1B cap season with cases from last year’s cap still pending. However, that is the current situation that I and I'm sure other Immigration Attorneys are facing. As my team and I prepare cap petitions for FY2020 we are still working on RFEs from FY2019.
In view of this fairly unique situation employers are asking whether it is possible to file a new cap petition in FY2020 when the previous year’s filing is still at the RFE stage or has been responded to, but remains unadjudicated.
This is what 8 CFR §214(h)(2)(i) (g) of the regulations states:
“Multiple H-1B petitions. 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 an H- 1B petition is denied, on a basis other than fraud or misrepresentation, the employer may file a subsequent H-1B petition on behalf of the same alien in the same fiscal year, provided that the numerical limitation has not been reached or if the filing qualifies as exempt from the numerical limitation. Otherwise, filing more than one H-1B petition by an employer on behalf of the same alien in the same fiscal year will result in the denial or revocation of all such petitions. 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 subject to the numerical limitations of section 214(g)(1)(A) of the Act or otherwise eligible for an exemption under section 214(g)(5)(C) of the Act, 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.”
Based on the above, the regulations only prohibit the filing of multiple petitions for the same beneficiary in the same fiscal year. There is nothing to prohibit an employer from filing a second petition for the same beneficiary in a different fiscal year.
However, as this is completely new territory it is difficult to know how USCIS would deal with the second application. For example, they may not adjudicate the FY2020 petition until such time as the FY2019 has been adjudicated. Alternatively, they could adjudicate and approve both petitions.
In the event, that a second petition is filed for FY2020 and the FY2019 gets approved then it would be recommended to withdraw the FY2020 case. In the event, that both cases get approved a decision would need to be taken to withdraw one of the cases, otherwise there may be some confusion as to the candidate’s validity dates.
What if you have filed a Motion to re-open/re-consider (MTR) and this is still pending? Again, as you would be filing in a different fiscal year, then there is no reason why you cannot file a new cap case in FY2020 with a pending MTR. While the MTR is pending the case remains denied so arguably the candidate has not been counted against the cap so filing another cap petition in another fiscal year should not be a problem.
If one case is approved before the other, then again it would be recommended to withdraw the alternative filing.
I have previously been asked by employers whether they can file multiple petitions for the same beneficiary under different companies having different Tax IDs. USCIS has been aware of this practice for many years and which gives the beneficiary an unfair advantage over others. As can be seen from the above regulation, unless each entity can demonstrate a legitimate business need then USCIS may issue an RFE, NOID or NOIR.
For example, let’s say company A, B and C (all owned by the same individual) all file a separate cap petition in FY2020 for the same beneficiary for the same end client location. Although all three companies have different Tax IDs, there is only one position available so USCIS would argue that there is no legitimate business need to file three separate applications. This is a classic example of where USCIS could issue an RFE, NOID or NOIR.
However, if all three related entities were to file for a different end client, albeit for the same beneficiary they would be able to demonstrate a legitimate business need to file three separate petitions, on the basis that there are three available positions.
February 20, 2019.