In March 2018, the Administrative Appeals Office (AAO) of the U.S. Citizenship and Immigration Services (USCIS) made a significant decision in the Matter of S- Inc. case, addressing the issue of multiple H-1B filings by related entities. This case clarified the regulatory bar on such filings.

The H-1B visa program is capped at 85,000 visas per fiscal year, known as the “cap.” Given the high demand for these visas, USCIS conducts a lottery system to randomly select petitions for adjudication. However, some employers attempt to augment their chances of selection by submitting multiple petitions for the same beneficiary.

To circumvent this exploitative practice, USCIS established a regulatory bar prohibiting multiple H-1B filings by the same petitioner for the same beneficiary in the same fiscal year, except when a legitimate business need could be demonstrated. If USCIS determines that related entities – parent companies, subsidiaries, or affiliates – lack a legitimate business need for filing multiple petitions for the same beneficiary, it may move to deny or revoke all such petitions.

In the Matter of S- Inc. case, the petitioner, a software development and consulting firm, and a related entity, C- LLC, filed H-1B petitions for the same beneficiary in substantially the same job role. The USCIS Director initially approved the petitioner’s petition, but later revoked the approval, stating violation of the multiple filing bar.

The petitioner, on appeal, asserted it was not related to C- LLC through corporate ownership and control, believing this to be the sole determinant of relatedness. Contrarily, the AAO clarified that the regulatory bar is not confined to corporate relationships; it also includes any petitioners who file multiple petitions for the same beneficiary in substantially the same job.

The AAO scrutinized the evidence and ascertained that, despite not being related through corporate ownership and control, the petitioner and C- LLC exhibited characteristics triggering the multiple filing bar. Both petitions sought to employ the beneficiary in substantially the same job for the same end-client through the same mid-vendors. Moreover, C- LLC’s petition included a subcontractor agreement with the petitioner, further reinforcing the finding of a relationship.

The AAO underlined the necessity for petitioners to demonstrate a legitimate business need to file multiple H-1B petitions for the same beneficiary. In this case, the petitioner failed to do so. The positions offered by the petitioner and C- LLC were not materially distinct, as they both sought to employ the beneficiary in substantially the same job for the same end-client through the same vendors.

The AAO rebuffed the petitioner’s argument that the multiple filing bar only applies to entities related through corporate ownership and control. It interpreted “related entities” to encompass any petitioners who file multiple petitions for the same beneficiary in substantially the same job, irrespective of their corporate relationships. This interpretation thwarts employers from gaming the system through corporate law stratagems to improve their chances of selection, unfairly disadvantaging other petitioners.

In conclusion, the AAO dismissed the appeal in Matter of S- Inc. and upheld the revocation of the petitioner’s H-1B petition.

By: Rahul Reddy

Rahul Reddy, a seasoned lawyer in the realm of employment-based immigration, is the founding partner of Reddy & Neumann PC. With an impressive career spanning over 28 years, he inaugurated the firm in 1997, bringing a wealth of knowledge and a unique perspective to the intricate landscape of immigration law.

Rahul’s understanding of the complexities inherent in the immigration system is vast and nuanced, making him an indispensable resource in this specialized field. This comprehensive expertise, coupled with his personal encounters with the immigration system, has imbued him with a profound empathy for his clients. Each case he undertakes is informed by this personal connection, as he understands the unique challenges and aspirations that drive individuals to navigate the immigration process.

Passionate and committed, Rahul is driven by a desire to assist others in realizing the quintessential American Dream. His mission, underpinned by years of professional experience and personal insight, remains focused on providing excellent legal support to those seeking employment-based immigration solutions.