With the FY2024 electronic registration approaching employers and their potential candidates are getting ready to submit their entries into the H-1B lottery. However, with only 85,000 visas available and given that last year saw almost half a million registrations people are wondering how they can improve their chances of being selected.
I often get asked by business owners whether they can file for someone’s H-1B through multiple entities. In 2021 USCIS released its updated FAQs on the electronic registration for FY2022. One of those questions concerned multiple filings by related entities for the same beneficiary.
USCIS reminded applicants that an employer may not file more than one H-1B petition for the same beneficiary in the same fiscal year. To do so would give the beneficiary an unfair advantage over other applicants, on the basis that more petitions are likely to give the beneficiary a higher chance of being selected.
However, USCIS also reminded applicants that related entities such as a parent company, subsidiary or affiliate cannot file multiple petitions unless they have a legitimate business need. For example, if two IT staffing companies are owned by the same individual or group of individuals, those two companies cannot file two separate H-1B petitions for the same beneficiary, unless there are two separate positions available.
However, the definition of related entities does not only include entities related through corporate ownership or control but also includes entities that file similar H-1B petitions for the same beneficiary for substantially the same job.
For example, if an Employer is filing a cap-subject H-1B petition for a beneficiary who is working at end-client A, that same end-client cannot also file a cap petition. Even though the Employer and end-client may be completely unrelated the fact that they are filing multiple petitions for the same beneficiary for substantially the same job is sufficient to be considered related in the eyes of USCIS. The more similarities between the two petitions the more likely that the entities will be considered related.
USCIS has directed its officers to follow the reasoning in the decision of the Administrative Appeals Office (AAO) in the Matter of S- Inc., Adopted Decision 2018-02 (AAO Mar. 23, 2018). In this case two entities had filed almost identical petitions for the same beneficiary to work at the same end-client location through the same mid-vendors and the documentation included in each petition demonstrated that both entities intended to employ the beneficiary in the same job at the same end-client location. The AAO concluded that the entities were related, despite having no legal relationship.
Where related entities file petitions for the same beneficiary for the same job then all petitions will be denied or revoked, unless all of the related entities can demonstrate a legitimate business need to file separate petitions. In order to demonstrate a legitimate business need there would need to be two separate jobs available.
However, despite a restriction on entities filing multiple petitions, there is nothing to stop an applicant from approaching several unrelated employers and asking them to each file a separate H-1B registration. Provided the companies do not have common ownership, do not know each other or are not working together to give the applicant a better chance of selection there is nothing wrong with multiple filings.
If you have questions about filing multiple petitions for the same beneficiary, please reach out to PLG Partner Chris Prescott at cprescott@patellegal.com.