USCIS Clarifies Multiple Filing Limits for Cap-Subject H-1B Petitions | Practical Law

USCIS Clarifies Multiple Filing Limits for Cap-Subject H-1B Petitions | Practical Law

US Citizenship and Immigration Services (USCIS) recently announced that it had published Policy Memorandum PM-602-0159 clarifying USCIS policy relating to identifying which employers are related entities for purposes of filing multiple cap-subject H-1B petitions for the same foreign worker beneficiary. The memorandum specifies when entities are related by factors other than corporate ownership and control. Employers (including related entities) may not file more than one cap-subject H-1B petition for a foreign worker to fill the same position in each fiscal year.

USCIS Clarifies Multiple Filing Limits for Cap-Subject H-1B Petitions

Practical Law Legal Update w-014-0380 (Approx. 4 pages)

USCIS Clarifies Multiple Filing Limits for Cap-Subject H-1B Petitions

by Practical Law Labor & Employment
Published on 03 Apr 2018 • USA (National/Federal)
US Citizenship and Immigration Services (USCIS) recently announced that it had published Policy Memorandum PM-602-0159 clarifying USCIS policy relating to identifying which employers are related entities for purposes of filing multiple cap-subject H-1B petitions for the same foreign worker beneficiary. The memorandum specifies when entities are related by factors other than corporate ownership and control. Employers (including related entities) may not file more than one cap-subject H-1B petition for a foreign worker to fill the same position in each fiscal year.
On March 29, 2018, US Citizenship and Immigration Services (USCIS) announced that it had published Policy Memorandum PM-602-0159 (March 23, 2018), clarifying USCIS policy relating to identifying which employers are related entities for purposes of filing multiple cap-subject H-1B petitions for the same foreign worker beneficiary. The memorandum specifies when entities are related by factors other than corporate ownership and control. Employers, including related entities, are barred by regulation from filing more than one cap-subject H-1B petition for a foreign worker to fill the same position in each fiscal year (8 C.F.R. § 214.2(h)(2)(i)(G)).
The policy memorandum:
  • Asserts that the regulatory bar to multiple cap-subject petitions applies to any petitioners, whether related through corporate ownership or control or not, that submit multiple petitions for the same foreign worker beneficiary for substantially the same position.
  • States that an evaluation of whether two job opportunities are related is an issue of fact resolved by reviewing the totality of the record.
  • Explains that factors to evaluate whether petitioners are related include, among others:
    • family ties;
    • proximity of locations;
    • leadership structure;
    • employment history;
    • similar work assignments; and
    • substantially similar support documents for the H-1B petition.
Section 214.2(h)(2)(i)(G) permits multiple cap-subject H-1B filings if the petitioner demonstrates a legitimate need to file more than one H-1B petition for the same foreign worker. To do so, a petitioning employer must show that each job offer is:
  • Bona fide.
  • Available to the foreign worker.
  • Materially distinct from that made in another H-1B petition by the same petitioning employer or a related entity.
Where multiple cap-subject petitions are filed by related entities for the same job opportunity without a legitimate business need, all petitions may be denied (or revoked if previously approved).
The guidance is effective immediately and may impact cases filed as part of the FY 2019 H-1B cap. The first day to file such petitions is Monday, April 2, 2018 (see Legal Update, Annual H-1B Cap Season for FY2019 Begins April 2nd).
For more information on the H-1B visa generally, see The H-1B Visa Classification Toolkit.