U.S. intensifies scrutiny of multiple H-1B applications

According to data collated by the USCIS, of the 34,01,117 applications for H-1B visas filed since 2007, 21,83,112 were for Indian beneficiaries.

Multiple H-1B visa applications for the same beneficiary could be subject to closer scrutiny and potentially lead to rejection of all petitions for that beneficiary, the U.S. Citizenship and Immigration Services (USCIS) reiterated on Thursday. The USCIS will begin accepting H-1B petitions for 2018 on April 2.

Signalling a tougher vetting of multiple applications for the same person, the USCIS said, “absent a legitimate business need,” it “will deny or revoke the approval of all H-1B cap-subject petitions filed by “related entities” for that beneficiary”. Used as a tactic to increase the odds of winning the lottery that selects beneficiaries from several times more applicants, multiple applications are barred if they come from “related entities.”

The USCIS said on Thursday the term “related entities” includes petitioners, “whether or not related through corporate ownership and control,” as long as the petitions are “for the same beneficiary for substantially the same job.” This was the adjudication of a particular dispute earlier, but will now be applicable for the entire selection process this year.

Administrative appeal

The question of what constitutes “related entities” was litigated in an administrative appeal in the USCIS and an order was issued on March 23, 2018. A petitioner who was rejected for having multiple applications for the same beneficiary argued that they had not come from “related entities” as the relevant regulatory text — “related entities (such as affiliates, subsidiaries, or a parent company)” — refers only to entities that are related through corporate ownership and control.

Dismissing the argument, the order said: “We disagree with the petitioner’s interpretation of the multiple filing bar as applying only to entities that are related through corporate ownership and control... the parenthetical opens with the non-exhaustive phrase “such as” it does not circumscribe a closed set of relevant relationships.”

Legitimate need

“Instead, we construe “related entities” to include petitioners, whether or not related through corporate ownership and control, who submit multiple petitions for the same beneficiary for substantially the same job. Whether two jobs are “substantially the same” is an issue of fact that we determine based on the totality of the record,” it said.

But multiple petitions can be filed, if there is “legitimate business need”. For this, the USCIS will “examine the underlying job opportunity made by each petitioner.”