The U.S. Citizenship and Immigration Services (USCIS) Administrative Appeals Office (AAO) delivered a landmark ruling on the issue of multiple H-1B filings in March 2018, shedding light on the complex and often misunderstood topic of “related entities.” The Matter of S- Inc. case clarified the stringent regulation prohibiting multiple H-1B filings for the same beneficiary by the same or related entities in the same fiscal year.
The H-1B visa program, which annually caps at 85,000 visas, is always oversubscribed due to the high demand. To manage this overflow, USCIS adopts a lottery system to select petitions for adjudication randomly. Notwithstanding, some employers exploit this system by submitting multiple petitions for the same beneficiary, hoping to increase their selection odds.
To tackle this abuse, USCIS established a rule barring the same petitioner from filing multiple H-1B petitions for the same beneficiary during the same fiscal year, except when a legitimate business need can be established. Furthermore, USCIS may deny or revoke all petitions if it creates that related entities – such as parent companies, subsidiaries, or affiliates – lack a legitimate business need for filing multiple petitions for the same beneficiary.
The Matter of S- Inc. was centered around a software development and consulting firm that filed H-1B petitions for the same beneficiary for virtually the same job alongside a related entity, C- LLC. USCIS initially approved the petitioner’s application but later revoked it, citing a violation of the multiple filing rule.
Despite the petitioner asserting that it had no corporate ownership or control relationship with C- LLC, the AAO dismissed the argument that corporate ties solely determine relatedness. It clarified that the regulation applies to any petitioners submitting multiple applications for the same beneficiary for a similar job.
Following a detailed examination of the evidence, the AAO established that although there was no corporate ownership or control link between the petitioner and C- LLC, there were factors that triggered the multiple filing bar. Both companies sought to employ the beneficiary in the same job for the same end client through identical mid-vendors.
Moreover, C- LLC’s petition included a subcontractor agreement with the petitioner, adding weight to the relationship claim.
The AAO stressed the importance of demonstrating a legitimate business need for filing multiple H-1B petitions for the same beneficiary. In this case, the positions offered by the petitioner and C- LLC were not materially distinct, undermining the argument for a legitimate business need.
In a move that prevents employers from manipulating corporate laws to gain an unfair advantage, the AAO expanded the definition of “related entities” to include any petitioners who file multiple applications for the same beneficiary for a similar job, regardless of corporate ties. This interpretation ensures a level playing field, promoting fairness among all petitioners.
In summary, the AAO dismissed the appeal in the Matter of S- Inc., maintaining the revocation of the petitioner’s H-1B petition. This decision is a milestone in the H-1B visa narrative, setting a precedent that curbs the exploitation of the system and ensures a fair and equitable allocation of visas.
If you or your family members have any questions about how immigration and nationality laws in the United States may affect you, or if you want to access additional information about immigration and nationality laws in the United States or Canada, please don’t hesitate to contact the immigration and nationality lawyers at NPZ Law Group. You can reach us by emailing email@example.com or by calling us at 201-670-0006 extension 104. We also invite you to visit our website at www.visaserve.com for more information.