During the H-1B registration period for FY 2024, demand appeared greater than ever. While we don’t have the official numbers from USCIS yet, we expect to see the total registrations number remain similar or climb even higher than last year. In part, this is because those who were not selected last year will have rolled over into this year’s lottery to try their luck again. With a greater number of people registering last year, the percentage of selection was lower, meaning there are more candidates who must try again this year. When you combine the previous years’ candidates with first-time H-1B hopefuls, the number of registrations received by USCIS increases exponentially. But that’s not the only thing contributing to record registration rates. Another contributing factor is the number of candidates who register through multiple different companies, hoping to increase their odds of selection.

For both H-1B employers and prospective employees alike, this raises important questions. How does USCIS treat this situation? Does registering through multiple companies hurt your chances of H-1B approval? Is this even allowed? If you are a company and you didn’t know your candidate was registering through other companies, can this impact you? This article breaks down what you need to know.

The Multiple Petition Rule

The multiple petition rule is found under federal regulations and states that an employer may not file more than one cap-subject H-1B petition on behalf of the same person in the same fiscal year. While that is simple enough, it gets tricky when more than one employer files a cap-subject H-1B petition for the same individual.

The regulations specify that “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…. USCIS may issue a request for additional evidence or notice of intent to deny or notice of intent to revoke each petition.” In other words, the employment opportunities must be separate and legitimate; each company must have an individual need for the beneficiary’s services.

“Related Entities” After Matter of S- Inc.

In 2018, USCIS issued a Policy Memo adopting a non-precedent AAO decision regarding the multiple petition rule. The AAO decision, Matter of S – Inc., was an appeal filed by ILBSG in 2015 on behalf of a company that received a revocation of an approved H-1B after USCIS discovered another company had filed an H-1B petition for the same beneficiary during the same fiscal year for a similar opportunity. The two companies were completely unrelated legal entities and neither company was aware the beneficiary had filed another H-1B to increase his chances of being selected in the lottery.

In arguing our appeal, we focused on the language of the regulations defining “related entities.” In the AAO decision, the board held that while the regulations only list entities with a legal relationship as examples of “related entities,” the regulatory language uses the term, “such as” which leaves it open to other kinds of relationships. The AAO held that if two companies file a petition for the same beneficiary for a similar opportunity, this is enough to find they are “related” and acted in concert to increase the chance of selection.

ILBSG’s appeal successfully persuaded USCIS to finally provide much-needed clarification on this issue.  In adopting the decision, USCIS issued official policy guidance offering the following clarification:

“Related entities” include petitioners, whether or not related through corporate ownership and control, that file cap-subject H-1B petitions for the same beneficiary for substantially the same job. Absent a legitimate business need to file multiple cap-subject petitions for the same beneficiary, USCIS will deny or revoke the approval of all H-1B cap-subject petitions filed by related entities for that beneficiary.”

Implications to the Registration System

The 2018 policy guidance on the multiple petition rule was issued prior to the introduction of the registration system, back when physical H-1B petitions were filed with USCIS starting on April 1. Since moving to a registration system, USCIS has not issued updated guidance or otherwise clarified how this rule applies to registrations. However, based on our extensive experience, we know how USCIS is treating this issue.

While the rule talks about “petitions” filed with USCIS, the Service is applying the same rule to H-1B registrations. Even in instances where a candidate registers through multiple companies but only files an actual H-1B petition through one company, USCIS is raising the issue. What this looks like in practice is a detailed Request for Evidence (RFE) or Notice of Intent to Deny (NOID) which will include the registration confirmation numbers associated with the H-1B beneficiary and explain that it appears that the organizations who submitted the registrations acted in concert to unfairly increase the odds of selection. USCIS will request a detailed explanation and supporting documentation to overcome this finding.

Different Scenarios

There are a couple of different ways this can all play out. If a candidate is selected through multiple companies and subsequently files an H-1B petition through each company, it may be easy to prove the petitions were for separate, independent opportunities. If the petitions have different job titles, different projects, different locations, etc., then there is no question the petitions correspond to separate opportunities and the H-1B multiple petition rule has not been violated.

It gets more complicated when the H-1B candidate is either not selected through the other company he/she registered through or chooses to file through only one. In that case, it may be harder to prove the opportunities were different. If the candidate doesn’t have an offer letter or project documents to show the other opportunity was completely separate, it will be harder to show that the registrations corresponded to unique, independent opportunities.

Another burden is that if the candidate is only selected through one company and doesn’t move forward with the other company, the other company may not want to provide the candidate with any documentation or assist at all in helping prove the opportunities were different. If the candidate didn’t ultimately end up working with that company, the company may be less willing to provide anything since they have nothing at stake.

Success Story

We know that many H-1B employers and prospective employees alike are hearing that USCIS is really targeting this issue. From our experience, it seems to be the case. This can be stressful, especially with all the other hurdles surrounding the H-1B cap. For employers, it can be particularly disconcerting, since they may not know if any of their candidates registered through other companies.  In that case, complex RFE or NOID on this issue could come as a complete surprise. Fortunately, ILBSG recently received a decision on a case that raised this exact issue, so we can offer our insight on this matter.

For the FY 2023 H-1B cap, we received an RFE raising the multiple petition rule, on the basis that two companies registered for the same beneficiary and later filed petitions with the same job title. After responding with thorough documentation and a detailed legal argument, we’re pleased to report the case has been approved.

In our response, we focused first on the fact the two companies were not legally related in any way. Next, we explained that the companies were not aware of each other and did not know of the other’s existence until the RFE was received. In other words, they could not have worked together to increase the odds of selection because they didn’t even know about each other. We emphasized that the H-1B petitions were filed for unique, completely separate opportunities and that our client had an independent need for the beneficiary’s services. We acknowledged that the job title was the same but explained that this was only logical – if a candidate is working in database administration, for example, it makes sense he would pursue Database Administrator roles at different companies. We argued the title simply corresponded to his specific IT-related skillset and that the title alone is not enough to show the positions were the same.

In supporting our argument, we included company documentation, showing there was no legal relationship between the companies. We also included project documentation for the role at our client’s company, as well as the other company’s employment offer and agreement, showing a different location, salary, and terms. Finally, we included a notarized statement from the beneficiary, confirming he did not inform our client he was filing through any other company, to show our client acted in good faith and was not aware of any other filing.

Ultimately, if this issue is raised, the burden will be on the H-1B petitioner to prove the opportunity is unique, independent, and legitimate. The more documentation a beneficiary has to prove the prospective positions are different, the better. This includes employment offer letters, emails about the position, copies of the job postings, etc. Anything you can provide to show independent, separate opportunities will help to overcome this issue.

If you have questions about this year’s H-1B cap or the multiple petition rule, please reach out to an ILBSG attorney today. Our expertise in this area can help you get the right advice.

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