New USCIS Rule Prohibits Multiple H1-B Filings
Published by Eric A. Welter on March 26, 2008
The USCIS announced on March 19, 2008, a new interim rule that prohibits employers from filing multiple H1-B applications for the same candidate. The 27-page Federal Register announcement of the new rule can be found here. The new rule is intended to eliminate any unfair advantage that might be received from filing multiple petitions on […]
The USCIS announced on March 19, 2008, a new interim rule that prohibits employers from filing multiple H1-B applications for the same candidate. The 27-page Federal Register announcement of the new rule can be found here.
The new rule is intended to eliminate any unfair advantage that might be received from filing multiple petitions on behalf of a single employee (i.e. to increase the chances of one of the petitions being randomly selected from the pool of petitions given the numerical cap on H1-B visas). The USCIS noted that last year it found some 500 instances where a single individual had been named on multiple petitions.
The text of the USCIS announcement is as follows:
WASHINGTON ─ U.S. Citizenship and Immigration Services (USCIS) transmitted an interim final rule to the Federal Register today that prohibits employers from filing multiple H-1B petitions for the same employee. These changes will ensure that companies filing H-1B petitions subject to congressionally mandated numerical limits have an equal chance to employ an H-1B worker. To ensure a fair and orderly distribution of available H-1B visas, USCIS will deny or revoke multiple petitions filed by an employer for the same H-1B worker and will not refund the filing fees submitted with multiple or duplicative petitions.
This rule does not preclude related employers (such as a parent company and its subsidiary) from filing petitions on behalf of the same alien for different positions, based on a legitimate business need. The interim final rule becomes effective upon publication in the Federal Register.
Last August, President Bush announced that the Administration would be undertaking a series of immigration and border security reforms. The changes to the H-1B filing process under this rule are an important part of that initiative.
This rule also stipulates that if USCIS determines the number of H-1B petitions received meets the cap within the first five business days of accepting applications for the coming fiscal year, USCIS will apply a random selection process among all H-1B petitions received during this time period. If the 20,000 advanced degree limit is reached during the first five business days, USCIS will randomly select from those petitions ahead of conducting the random selection for the 65,000 limit. Petitions subject to the 20,000 limit that are not selected in that random selection will be considered with the other H-1B petitions in the random selection for the 65,000 limit.
The rule further clarifies that USCIS will deny petitions that incorrectly claim an exemption from any H-1B numerical limits. Those filing fees will not be returned.Topics: Immigration