U.S. Citizenship and Immigration Services has issued a policy memorandum that addresses the issue of multiple H-1B cap-subject petitions filed by related entities for the same employee in a fiscal year. The policy guidance adopts the Administrative Appeals Office decision in Matter of S- Inc., and instructs USCIS officers to apply it to similar cases.

Regulations already bar a single employer from filing more than one H-1B cap-subject petition in the same fiscal year for the same individual. Further, if USCIS believes that “related entities,” such as a parent company, subsidiary or affiliate do not have a legitimate business need to file more than one petition for the same beneficiary, it may request additional evidence or issue a notice of intent to deny the petitions. If the related petitioners are unable to demonstrate a legitimate business need, USCIS will deny or revoke the petitions.

The petitioner in Matter of S- Inc. was a software development and consulting firm that filed an H-1B cap petition for a computer programmer. USCIS revoked approval of the petition, finding that another company that had also filed an H-1B cap petition for the same individual, C-LLC, was a “related entity” even though the companies were not corporate affiliates. Both companies had filed H-1B petitions for the same individual to work in the same position for the same end client. On appeal, the Administrative Appeals Office upheld the revocation, finding that even though the two companies were not related as corporate affiliates, other factors can be considered to evaluate relatedness, including “familial ties, proximity of locations, leadership structure, similar work assignments and similar supporting documentation.”

“We are not concerned with petitioning employers who have any quantum of a relationship,” the AAO noted in its decision. “Two unwitting companies would not likely have the requisite similitude to trigger the bar. But the more similarities in the record, the more likely the companies were seeking to undermine the purpose of the random lottery process.”

BAL Analysis: This case provides insight into how USCIS determines whether entities are “related” for purposes of H-1B cap filings. Whether or not they are formally related through corporate ownership and control, petitioners that have other connections and file H-1B cap petitions for the same beneficiary for “substantially the same job” can be deemed related entities. Companies should be aware that multiple H-1B cap fillings for the same beneficiary may lead to greater scrutiny and requests for evidence.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

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