On March 23, 2018, the USCIS issued a policy memorandum (PM) that designates the Matter of S-Inc. decision of the Administrative Appeals Office (AAO) as an Adopted Decision to be used by USCIS employees as policy guidance on the issue of Multiple H-1B filings. The PM provides clarification on the prohibition on multiple H-1B filings by “related entities” for the same beneficiary for substantially the same job absent a legitimate business need. By using the phrase “substantially the same job”, the AAO means that the petition is for the same beneficiary doing similar job duties for the same end-client.
WHO ARE “RELATED ENTITIES” UNDER THIS PM?
Based on Matter of S-Inc., the USCIS will view two employers who are not connected by corporate ownership and control as “related” if they file for the same beneficiary for fulfilling similar job duties for the same end-client. In Matter of S-Inc., even though the companies appeared to stand at arm’s length under Corporate Law, the fact that the two Petitioner’s filed for the same beneficiary (same job and same duties) at the same end-client through the same mid-vendors triggered the prohibition of multiple H-1B filings by related entities. It also appears that the two companies may have been contracting with each other for beneficiary’s services. Thus, two petitioners, even if considered unrelated under corporate law, will not be able to file an H-1B petition for the same beneficiary. The only exception to this rule is if the “related” employers can demonstrate a “legitimate business need” which is not easy to establish – one has to show that the positions are “materially distinct.”
The USCIS has indicated that it will deny all H-1B cap-subject petitions that are filed by multiple companies (even if on paper they are not related under Corporate Law), if USCIS finds that the petitions are for the same beneficiary doing similar job duties for the same end-client.
GLF has always advised against multiple filings and this is not a new policy but more of a reiteration of long standing policy. If USCIS comes across two petitions for the same Beneficiary (even if only one was selected in the lottery), it has always compared the contract docs in both filings (cap reject and selected petition) and denied both cases. Thus, our advise continues to be the same – “do not knowingly file multiple H-1B petitions for the same Beneficiary.”
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