In announcing this year’s H-1B cap registration statistics, USCIS raised a concern about the high number of multiple registrations it received. USCIS indicated that some companies may have gained an unfair advantage by working together to submit multiple registrations on behalf of the same beneficiary. USCIS reminded H-1B petitioners that they sign an attestation when submitting the registrations and issued a stark warning that companies who violate the multiple petition rule may face consequences, including criminal investigation.

Since this announcement, there has understandably been a great deal of confusion and alarm. As employers have learned some of their candidates may have registered through other companies without their knowledge, many are wondering whether they can still file the H-1B petitions for selected candidates or if the multiple petition rule may be implicated. This employer guide seeks to clarify how the multiple petition rule works, who is and isn’t at risk, and how to navigate this year’s H-1B filing period in light of the recent news.

The Multiple Petition Rule: Who Does it Apply to?

Under the multiple petition rule, “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, if two related employers file for the same beneficiary, the employment opportunities must be separate and legitimate. Each company must have an individual need for the beneficiary’s services.

Even if there is no legal relationship between the companies, the rule may still apply in some scenarios. This is because USCIS has clarified that “related entities” include petitioners that file cap-subject H-1B petitions for the same beneficiary for substantially the same job. In these situations, there does not have to be any legal relationship between the companies for the rule to be implicated. If the position is substantially the same, that is enough to show the companies acted in concert to gain an unfair advantage. We know that USCIS will consider the rule to be violated even if the companies have no knowledge of each other in some circumstances. For example, if the end client project is the same, that is enough to potentially implicate the rule.

Can Unrelated Employers File for the Same Beneficiary?

With all the recent alarm and confusion, many people are questioning whether a company is allowed to register a candidate who may have additional registrations with other companies. Particularly since many companies did not know their candidates were registering through other companies as well, some are concerned they may have unwittingly broken the rule. This is not the case. As long as your company did not work with another company to increase the chances of selection, the rule has not been violated. The fact your company registered a candidate who had additional registrations through other companies is not sufficient to show collusion. There is no reason to refrain from filing or otherwise not move forward if your company did not work with any other company to gain an unfair advantage. If your company has not done anything wrong, there’s no reason to hide.

In publishing the Final Rule, DHS expressly confirmed it is “not amending the regulations to prohibit multiple employers from filing an H-1B cap-petition for the same beneficiary.” DHS explained that the regulations already preclude the filing of multiple H-1B cap-subject petitions by related entities for the same beneficiary unless there is a legitimate business need for filing multiple cap petitions for the same beneficiary. The final rule did not change the regulations on this matter.

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.”  This means that a beneficiary is legally permitted to register through different employers, as long as each employer extended a legitimate, bona fide offer of employment for an independent, separate opportunity.

Who is Impacted by USCIS’ Announcement?

While the language of USCIS’ announcement was undeniably strong and provided a very clear warning to potential violators, it’s important to understand this rule is not new nor is its enforcement.  USCIS heavily targeted this rule last year, so we know how USCIS treats this issue and what we can expect this cap season.

Importantly, this warning was for companies who may have worked together to gain an unfair advantage. This warning was not directed towards beneficiaries who pursued more than one employment opportunity and registered through multiple employers. It is very important to distinguish these two very different scenarios. H-1B beneficiaries are expressly permitted by DHS to entertain various employment offers for independent, separate opportunities and then file a petition with the employer they find most suitable.

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.” This means that if a candidate registered through multiple unrelated companies for separate, independent opportunities, the rules have not been violated.

What is the Impact on H-1B Petitions?

If you are a company and one of your candidates is registered through multiple employers, you can still file a petition on their behalf. As long as you have a bona fide job offer and a legitimate need for the employee, this will not be a problem. While USCIS may issue an RFE or other inquiry regarding the multiple registrations, as long as the beneficiary can show these were separate, independent job offers through unrelated entities, any issue raised can be overcome.

Many are questioning how you can prove the opportunities were different. This is fairly simple. If the beneficiary can provide documentation showing the position details with the other companies who registered them, such a job posting, job description, etc., that will be sufficient to show the opportunities were different. This can include email discussions, offer letters, or any other documentation showing the position title, job duties, or project information. As long as you can show the opportunities were completely separate and distinct, any question by USCIS can be easily addressed.

If a beneficiary was selected through more than one company, this may be even simpler. In this scenario, each employer can file an H-1B petition on the beneficiary’s behalf. 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. This is true even if the companies are related since different projects show an independent, legitimate business need by each entity.

What Happens if We Don’t File the H-1B Petition?

We understand that many outlets are encouraging H-1B petitioners not to file petitions this year, to avoid this issue with USCIS. However, it is important to understand that if you did not work with another company to increase the odds of selection, there is no reason for you not to file the petitions for your selected candidates. On the contrary, if you don’t file, you could be inviting bigger issues for your company.

If you registered a high number of 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 actually intend to employ the candidates. Further, if you have overlapping candidates with another company and you do not file the petition, USCIS will not have the opportunity to issue an RFE or other inquiry to find out what happened. In that case, they may be forced to investigate the company to get answers. If you didn’t work with another company, you didn’t violate any rule. As such, it would be easier to file the petition and simply submit documentation showing the opportunity was separate and unique. Why invite scrutiny through a full-blown investigation or other mechanisms when you could just file the petition and go on the record that you didn’t work with anyone to increase your chances? We highly recommend filing the petition and getting out ahead of the issue. If you didn’t do anything wrong, there’s no reason to act like you did.

How Should We Handle Inquiries from USCIS?

If USCIS raises the multiple registration issue on RFE or Notice of Intent to Deny (NOID), they typically provide the registration confirmation numbers for each registration submitted on behalf of the beneficiary and then ask you to “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.

Sometimes, USCIS may approve the petition and then later raise a Notice of Intent to Revoke on this issue, if they discover adverse information later on. In that case, the response strategy is very similar. Because the timeline is more protracted with this kind of inquiry, it’s important to gather evidence and keep good records in anticipation this issue could be raised later, even if it doesn’t come up at the filing stage.

For many students working on OPT, there is hesitation to file this year in light of USCIS’ announcement, especially since it could jeopardize their current status and work authorization if the H-1B is approved and later revoked (since you can’t change status back to recapture the remaining OPT). One option for these candidates is to file the H-1B petition for consular processing instead of a change of status, so the employee can finish out their OPT and later attend stamping to begin their H-1B status. This strategy would allow more time to make sure USCIS isn’t going to come back and revoke the approval later, so it’s something worth considering.

Conclusion

We understand the widespread confusion and panic surrounding the H-1B cap this season in light of USCIS’ announcement and emphasis on multiple registrations. However, we cannot emphasize enough that if your company did not work with another company to increase the chances of selection or gain an unfair advantage, there is no violation. H-1B candidates are permitted to entertain multiple offers and the fact a beneficiary registered through more than one company does not mean the rule has automatically been violated. While the multiple petition rule can certainly create some complications, many of 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 are here to help your company get the best possible outcome.

 

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