The demand for H-1B (specialty occupation) visas normally exceeds the annual 85,000 visa cap by two to three times, thus triggering a random lottery for the available visas. Existing United States Citizenship and Immigration Services (USCIS) regulations prohibit the filing of multiple H-1B visa petitions that are subject to the annual cap for the same individual by an employer or a “related entity,” unless the related entity filing is justified by a legitimate business need. The purpose of the regulation is to prevent employers from trying to increase their chances of winning the H-1B cap lottery by submitting multiple petitions for the same individual for substantially the same position. The penalty for violation of the regulation is denial or revocation of all petitions for the common beneficiary.
The regulation cites “parent, subsidiary, or affiliate” as examples of related entities. On March 23, 2018, USCIS adopted as precedent an agency decision issued in January 2018, that expands the concept of “related entity” beyond companies that are related by ownership and control. Factors that USCIS adjudicators will now consider in determining “relatedness” include, but are not limited to, familial ties, proximity of locations, leadership structure, employment history, similar work assignments, and substantially similar supporting documentation accompanying the petitions. The clear message from the agency: Don’t try to game the system!
The agency will consider evidence of a legitimate business need for multiple filings by related entities, but only where the job opportunities are clearly “materially distinct.” This exception is not available to a single employer who files multiple petitions for the same individual.