Denial of H-1B Visa lottery due to double filing of H-1B visa by multiple companies

Posted by Keshab R. Seadie | Jan 16, 2022 | 0 Comments

Denial of H-1B Visa lottery due to double filing of H-1B visa by multiple companies

Can I file multiple Cap Subject H-1B visas (lottery) from multiple companies?

The short answer is Yes. You can file multiple Cap Subject H-1B visas from multiple companies provided these multiple companies are not affiliated or owned and operated by the same entity or individuals.

The USCIS allows to multiple beneficiaries, but a petitioner may only submit one registration per beneficiary in any fiscal year. If a petitioner submits more than one registration per beneficiary in the same fiscal year, all registrations filed by that petitioner relating to that beneficiary for that fiscal year will be considered invalid.

A registrant's USCIS online account will show the following status for each registration in case of multiple filing by the same or affiliated companies:

Denied: Multiple registrations were submitted by or on behalf of the same registrant for the same beneficiary. If denied as a duplicate registration, all registrations submitted by or on behalf of the same registrant for this beneficiary for the fiscal year are invalid.

There is no specific USCIS memo defining affiliate for the multiple filing purposes; however it does have a memo defining affiliate for L-1 visa. We can make this USCIS policy memo as a guide post for filing multiple H-1Bs from multiple companies for the same individual applicant.

In the pertinent part, the USCIS memo states that “Although DHS does not define “affiliate” in the ACWIA fee context, DHS does define “affiliate” in the context of L-1 nonimmigrant intracompany transferees in 8 CFR 214.2(l)(1)(ii)(L)(1) and (2). In this section, “affiliate” is defined in pertinent part as: “(1) [o]ne of two subsidiaries both of which are owned and controlled by the same parent or individual, or (2) [o]ne of two legal entities owned and controlled by the same group of individuals, each individual3owning and controlling approximately the same share or proportion of each entity....” Subparagraph (3) does not apply in the H-1B context (even by extension) because Congress only meant for that partnership provision to apply specifically to multinational managers and executives. This intent appears in the language in 8 U.S.C. 1101, note 12, which clarifies that this accounting partnership definition only applies when considering sections 101(a)(15)(L) and 203(b)(1)(C) of the INA “and for no other purpose.” Adopting the L-1 nonimmigrant definition of “affiliate” is a rational approach since this definition has already been defined in DHS regulations. See Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 184-85 (1988) (presuming that Congress is aware of USCIS regulations at the time it passes a law).

Furthermore, adopting an existing definition used in another employment-based nonimmigrant visa context provides for improved consistency and ease of application by officers and stakeholders.

Officers should use the definition of “affiliate” in 8 CFR 214.2(l)(1)(ii)(L)(1) and (2) when determining the proper FTE employee count for the ACWIA fee. Officers should count the petitioning employer's FTE employees and FTE employees of its affiliates, as a affiliates, as applicable. Under this definition, the parent of the petitioning employer should not be counted.”

As can be seen from the foregoing, we need to make sure there is no double filing of the Cap Subject H-1B visa by the same company or its affiliate company. The USCIS can cancel or revoke any double filing even after the approval of the underlying H-1B visa. 

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