Last week, USCIS announced the FY 2024 H-1B cap registration statistics, explaining that the sharp increase in multiple registrations this year raises serious concerns that some may have gained an unfair advantage by working together to submit multiple registrations on behalf of the same beneficiary. This violates the multiple petition rule.

As the H-1B cap season is well underway, we have compiled some frequently asked questions and answers about the multiple petition rule as it relates to registration and subsequent petition filing:

Q: What is the “Multiple Petition Rule”?

A: 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.” 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.

Q: How does USCIS determine if petitioners are “related entities”?

A: Following Matter of S-, USCIS issued guidance confirming that “related entities” include petitioners, whether or not legally related through corporate ownership and control, that file cap-subject H-1B petitions for the same beneficiary for substantially the same job. This means there does not have to be any legal relationship between the companies. If the position is substantially the same, that is enough to show the companies acted in concert to gain an unfair advantage.

Q: Does the “Multiple Petition Rule” apply to H-1B registration?

A: While 8 CFR 214.2(h)(2)(i)(G) only discusses this rule in the context of “petitions” filed with USCIS, when the registration system was implemented by DHS through the 2019 Final Rule titled “Registration Requirement for Petitioners Seeking To File H-1B Petitions on Behalf of Cap-Subject Aliens” (hereinafter “Final Rule”), the agency expressly confirmed the existing prohibition against multiple petitions would continue to apply.

In the comments section, DHS explained that “this final rule does not change how USCIS will enforce the existing rules prohibiting a petitioner (including related entities) from filing multiple H-1B cap-petitions for the same beneficiary in the same fiscal year, absent a legitimate business need to do so. USCIS will continue to enforce the existing prohibition. If a petitioner (including related entities) files multiple petitions in violation of 8 CFR 214.2(h)(2)(i)(G), USCIS will deny or revoke all petitions filed on that beneficiary’s behalf by the petitioner.”

Q: Can multiple employers file H-1B petitions for the same beneficiary in any circumstance?

A: Yes, absolutely. There is no rule against multiple employers filing petitions/registrations for the same beneficiary, if the opportunities are for separate, independent positions at each company. This is true even if the companies are legally related. If there is a separate business need that justifies each entity filing a separate H-1B petition/registration, the rule has not been violated.

In publishing the Final Rule, DHS confirmed it is “not amending the regulations to prohibit multiple employers from filing an H-1B cap-petition for the same beneficiary. DHS regulations, however, already preclude the filing of multiple H-1B cap-subject petitions by related entities for the same beneficiary, unless the related petitioners can establish a legitimate business need for filing multiple cap petitions for the same beneficiary, and that regulation remains unchanged by this final rule.”

Finally, when asked specifically about unrelated employers, DHS expressed that “The regulations do not currently restrict multiple unrelated employers from petitioning for the same beneficiary or beneficiaries, and DHS does not intend to impose such a limitation in the registration process in this final rule.”

Q: If your prospective employee registered through other companies without your knowledge, will it impact your company?

A: No. If your prospective employee registered through other companies for different opportunities, this does not impact your company or undermine the validity of your registration in any way. As long as the multiple registrations were for unrelated employers, for separate, unique opportunities, there is no violation of the rule.

In the Final Rule, USCIS expressly confirmed that “there is no prohibition on a prospective H-1B beneficiary considering job opportunities with multiple employers which may seek to extend a job offer.”

Q: How can you show the registration was submitted for an independent, unique opportunity at your company?

A: If the prospective employee can provide documentation showing the position details with the other companies who registered them, such as job postings, job descriptions, etc., it is fairly simple to show the opportunities are different. This can include email discussions, offer letters, or other documentation showing the position title, job duties, or project information. Anything that confirms these details for the other positions can be used to show the opportunity at your company is completely separate and distinct.

Even in the absence of this kind of documentation, the registrations alone are not sufficient for USCIS to prove the opportunities are the same. If the companies are not legally related, unless USCIS can show that the positions were substantially the same, they will not be able to enter an adverse decision on your petition. Any decision, unsupported by actual evidence showing the positions were the same and the companies acted together, can be challenged.

Q: How does USCIS treat this issue on RFE?

A: If USCIS raises this issue on RFE, they typically provide the registration confirmation numbers for each registration submitted on behalf of the beneficiary and ask that you “provide a detailed explanation and supporting documentation that demonstrates that you did not work with another registrant, petitioner, agent, or other individual or entity to submit a registration to unfairly increase chances of selection for the beneficiary.” At that stage, you can submit evidence showing the positions are unique, separate opportunities.

Q: If one of my company’s registered candidates also registered and was selected through another company, can we still file the H-1B petition for them?

A: Yes. In fact, it is better that you do. If you register candidates and then do not end up filing petitions on their behalf, it may raise a red flag to USCIS that the registrations were submitted frivolously and that you did not intend to actually employ the candidate.

Q: If an H-1B beneficiary was selected through multiple companies, what is the best option for them?

A: The best option, where possible, is to have each employer file an H-1B petition on behalf of the beneficiary. The easiest way to prove the multiple petition rule was not violated is to have the petitions filed showing the different, unique opportunities. If there are two employers, one can file a petition for full-time employment and the other can file for a concurrent H-1B new petition for part-time employment. This is a great option to ensure the multiple petition issue cannot be raised and neither company will be negatively impacted by the multiple registrations. If the positions are completely unique, for different projects, the issue cannot be raised. This is true even if the companies are related since different projects show an independent, legitimate business need by each entity.

Q: There is a lot of speculation the H-1B registration system may be changed going forward. How will it change next year?

A: While many are speculating the H-1B registration system may be updated in the future to address the multiple registrations issue, we do not have any information at this time. USCIS has not indicated what changes, if any, we are likely to see to address this problem in the future. Until USCIS makes a formal announcement or publishes any proposed rulemaking, we will have to wait and see. ILBSG will post updates on any new developments in this area.

The multiple petition rule can certainly create complications and confusion, but these challenges can be overcome with the right advice. We recommend working with an experienced immigration attorney who can evaluate your situation on a case-by-case basis to ensure the best strategy and approach. If you are preparing to file H-1B petitions in the FY 2024 cap and have questions about the impact of multiple registrations, please reach out to an ILBSG attorney today. We can help.

FY2024 H-1B Cap h-1b H-1B Cap Multiple Petition Rule