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H-1B CAP ALERT

  • Published: March 30, 2018
H-1B CAP ALERT
Scarborough Law Announces
 H-1B CAP ALERT:Multiple H-1B Petitions; New adopted decision broadens the “Related Entities” definition

 The rule regarding filing multiple H-1B Cap-subject petitions is found in {8 C.F.R. § 214.2(h)(2)(i)(G}:

“An employer may not file, in the same fiscal year, more than one H-1B petition on behalf of the same alien if the alien is subject to the numerical limitations of section 214(g)(1)(A) of the Act or is exempt from those limitations under section 214(g)(5)(C) of the Act. . .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. If any of the related entities fail to demonstrate a legitimate business need to file an H-1B petition on behalf of the same alien, all petitions filed on that alien’s behalf by the related entities will be denied or revoked. {8 C.F.R. § 214.2(h)(2)(i)(G)} (emphasis added).”

The U.S. Citizenship and Immigration Services (USCIS) has adopted the decision Matter of S-Inc. addressing the prohibition of multiple H-1B filings by “related entities”.  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. Matter of S-Inc. broadly interprets “related entities” removing the traditional “ownership and control” standard and applying a broad “[intent] to employ the Beneficiary in substantially the same job (i.e., performing substantially similar duties for the same end-client).” Therefore, you must be cautious when applying under the H-1B Cap for positions which are substantially similar such as the same position for the same end-client but with two different employers.  The result could be revocation or denial of both H-1B Cap petitions.

The adopted rule broadening the definition of “related entities” under Matter of S-Inc. to include petitioners who are not related by corporate ownership and control but who seek to hire workers for substantially the same job.

The Matter of S-Inc. rule:

 “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, U.S. Citizenship and Immigration Services will deny or revoke the approval of all H-1B cap-subject petitions filed by related entities for that beneficiary.

Check out the original alert post at:

https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-3-23-PM-602-0159-Matter-of-S-Inc-Adopted-Decision-Package.pdf

Excerpt From: USCIS.gov

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