USCIS Issues Memo Updating Policy on Multiple H-1B Cap Filings for Same Individual

USCIS recently issued a Policy Memorandum adopting Matter of S- Inc., a decision issued by the Administrative Appeals Office (AAO) regarding the prohibition on “related entities” filing multiple cap-subject H-1B petitions for the same H-1B beneficiary in an effort to increase chances of acceptance into the H-1B lottery.  USCIS’s adoption of this decision establishes policy guidance that applies to and guides USCIS visa adjudications, and the Memo directs USCIS personnel are to follow the reasoning in this decision in similar cases.

The applicable regulations indicate that “related entities” include a parent company, subsidiary, or affiliate.  Matter of S- Inc., further clarifies that the definition of “related entities” is broader than those examples listed in the regulations and includes H-1B petitioners that file cap-subject H-1B petitions for the same beneficiary for substantially the same job even where there is no formal corporate relationship or shared ownership or control. The decision states that, unless petitioners can provide 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 such “related entities” for that beneficiary.  

This broad definition affords USCIS substantial discretion in determining what entities qualify as “related entities”. The AAO in Matter of S- Inc., did outline several objective factors that can be used to determine whether entities are sufficiently “related” to trigger the prohibition, including familial ties, proximity of locations, leadership structure, employment history, similar work assignments (such as the same end-client in third-party placement scenarios), and substantially similar supporting documentation (such as extremely similar or identical job descriptions).

The AAO explained that two “unwitting” companies simply filling similar petitions for a beneficiary are unlikely to trigger the bar and that the evidence of similitude in the record will be considered under the totality of the circumstances such that the more similarities that exist between the entities, the more likely USCIS is to infer that the filings were made to undermine the random H-1B lottery process.