New USCIS Policy: H-1B Cap “Related-Entity” Filing Bar for Employers with Different Corporate Ownership and Control

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New USCIS Policy:  H-1B Cap “Related-Entity” Filing Bar for Employers with Different Corporate Ownership and Control

 

There is a new policy on H-1B Cap “Related-Entity” Filing Bar by U.S. Citizenship and Immigration Services (USCIS).  USCIS will deny or revoke all multiple filings of H-1B Visa Cap Petitions filed without a “legitimate business need” for the same beneficiary by “related entities” for “substantially the same job” in the same H-1B visa fiscal year, even if the petitioners are unrelated through corporate ownership and control, or a duplicate petition is later withdrawn.  For examples, petitioners are considered “related entities” even if they have separate FEINs, operation locations, management, and ownership.  

 

The list provided by immigration regulation in 8 C.F.R. § 214.2(h)(2)(i)(G) describing “related entities” as “…. (such as a parent company, subsidiary, or affiliate)….” are examples only and not an exhaustive list.  Factors determining “related entities” and “substantially the same job” will be based on the totality of the records including, but are not limiting to:  familial ties, proximity of locations, leadership structure, employment history, similar work assignments, and substantially similar supporting documentation.

 

Each of these “related entities” must separately demonstrate a “legitimate business need”.  Otherwise, all these H-1B Cap Petitions will be revoked or denied

 

This USCIS policy is to increase fairness in the random lottery process for the limited H-1B visa numbers so that other H-1B Cap Petitions will have a chance of being selected.

 

A USCIS policy memorandum serves as a guidance only, and does not create any rights to immigration benefits.  Each case is adjudicated on a discretionary basis by USCIS.

 

This USCIS policy memorandum is based on an AAO decision in the Matter of S- Inc.  For further information on Matter of S- Inc., Adopted Decision 2018-02 (AAO Mar. 23, 2018), please visit: https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-3-23-PM-602-0159-Matter-of-S-Inc-Adopted-Decision-Package.pdf

 

The Administrative Appeals Office (AAO) hears appeals for over 50 different types of immigration case, approximately. AAO and USCIS are parts of the U.S. Department of Homeland Security (DHS).  Instead of AAO, certain immigration cases are appealed to the U.S. Department of Justice (DOJ) such as the Board of Immigration Appeals (BIA).

 

Petitioners are eligible to file H-1B Cap Petitions for the Fiscal Year 2019 to be received by USCIS on April 2, 2018.

 

 

March 23, 2018

This article is intended for informational purposes only, and should not be relied on as legal advice or attorney-client relationship. By Aik Wan Kok, Lawyer USA Immigration Services, at Tiya; Tel: 703-772-822four & email to info at tiyaimmigration dot com; Direct dial from abroad: 001-703-7728224; http://www.tiyaimmigration.com ; http://tiyalaw.blogspot.com https://immigrationresource.net

We represent employers, companies, individuals, and families in U.S. Immigration & Nationality Law.  Our clients are based nationwide in the U.S. and internationally.  We focus on diverse immigration cases including, but are not limiting to: extraordinary ability; national interest waiver; PERM with U.S. Department of Labor; I-130 for sponsoring relatives and families; I-140 for employment green card; I-485 Adjustment Applications; I-765 work permit; I-131 for international travel and returning to the U.S; I-601 extreme hardship waiver relatives of U.S. citizen or green card holder; I-751 joint filing or waiver; N-400 Naturalization/Citizenship; N-648 Medical Waiver; I-212 waiver for deportation or removal order; J waiver; other waivers; H-1B professional worker/specialty occupation; H-2B temporary worker; L executive, manager and specialized knowledge professional transferring from overseas; E treaty investors/traders; B-1 business visitor to the U.S.; B-2 visitor to the U.S.; F-1 student coming to study in the U.S.; matters pertaining to consular processing with U.S. consulates and National Visa Centers; cases with USCIS; cases with U.S. Department of Labor; PERM audit; RFE Request for Evidence (RFE); NOID Notice of Intention to Deny (NOID), and others.

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