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year, even if the petitioners are unrelated through corporate ownership and control, or a duplicate petition is later withdrawn.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; https://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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USCIS Suspends Premium Processing Service for H-1B Petition FY 2019 Visa Cap

U.S. Citizenship and Immigration Services (USCIS) has just announced that it will be suspending premium processing service, temporarily, for all cap-subject H-1B petitions, starting April 2, 2018.  This suspension is expected to last until September 10, 2018.  Currently, this suspension applies only to H-1B petitions that are subject to Fiscal Year (FY) 2019.

H-1B employers will be eligible to submit H-1B petitions subject to FY 2019 visa cap to be received by USCIS on April 2, 2018.  With this temporary suspension, USCIS will reject any Form I-907, Request for Premium Processing Services, filed with H-1B petitions that are subject to FY 2019 visa cap.

The reason for this premium-processing suspension is so that USCIS may adjudicate other H-1B petitions that have been long pending.

With a premium processing service, USCIS will adjudicate a petition within 15 calendar days from its receipt (e.g. approval, request for evidence or denial within 15 days).  With this temporarily suspension, there will be processing delay for FY 2019 H-1B cap petitions/visas.  This means, it will be some months before USCIS will be able to adjudicate H-1B petitions subject to FY 2019 visa cap that are fortunate enough to be selected in the H-1B lottery process.

March 20, 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: 703-772-8224 & info at tiyaimmigration dot com; Direct dial from abroad: 001-703-772-8224; https://www.tiyaimmigration.com ; http://tiyalaw.blogspot.com ; https://immigrationresource.net

Need help with green card, work visas, work permit, sponsoring family, sponsoring employees, sponsoring relatives, hardships or immigration waivers, U.S. naturalization/citizenship, and cases with USCIS, Department of Labor or immigration? 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 represent 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 to adjust status; I-765 work permit/employment authorization; 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; 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 many more.

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H-1B Visa Cap for FY 2014 Has Been Reached & Lottery Selection Conducted

H-1B Annual Work Visa Cap

On April 5, 2013, the U.S. Citizenship and Immigration Services (USCIS) has received a high number of H-1B Cap Petitions and reached the 65,000 statutory cap for the 2014 fiscal year (FY).  The USCIS has received more than 20, 000 H-1B Cap-Exempt Petitions for those under the U.S. advanced degree.   During the period up to and including April 5, 2013, the USCIS around 124,000 H-1B petitions in total.  After April 5, 2013, USCIS will not accept any more H-1B Cap Petitions and U.S. advanced degree H-1B Cap Exempt Petitions, for FY 2014.

On April 7, 2013, USCIS conducted computer-generated random selection process (lottery) to select a sufficient number of petitions needed to meet the caps of 65,000 for the H-1B cap category and 20,000 under the advanced degree exemption limit.  Those not selected will be returned with filing fees.  Random selection was conducted first for advanced degree H-1B petitions

USCIS received approximately 124,000 H-1B petitions during the filing period, including petitions filed for -1B Cap-Exempt Petitions for those under the U.S. advanced degree, and those not selected were processed under the 65,000 limit.

For this H-1B cap-season purpose only, USCIS will begin premium processing for H-1B cap cases on April 15, 2013.

What is an H-1B?

H-1B petitions are temporary work visas for positions requiring theoretical or technical expertise in specialized fields for qualified foreign nationals to live and work in the U.S. Many H-1B foreign nationals have successfully gone on to apply for and obtain lawful permanent residence status (also known as, green card).

Foreign nationals with at least a bachelor’s degree or the equivalent (equivalent degree and/or work experience) may be sponsored for H-1B petitions. A broad range of positions may fall under H-1B specialty occupations; each case depends on a position’s own set of circumstances.

Some H-1Bs Are Not Subject to H-1B Annual Work Visa Cap

Not all H-1B petitions are subject to annual visa cap, depending on the types of H-1B petition being filed, or the types of entity-sponsor. For examples, foreign nationals who already have approved H-1B petitions or H-1B status may still have H-1B petitions filed for them to extend their H-1B status, or to change or add H-1B employers.

Duration of H-1B

In general, H-1B petitions/work visas are approved for three years each time (up to a total of 6 years). Under certain circumstances, H-1B work visas can be extended beyond the 6-year maximum time limitation.

H-1Bs Not Selected or Filed When All H-1B Annual Work Visas Are Used Up

Potential H-1B candidates who do not make it to the Fiscal Year 2013 H-1B visa quota (October 1, 2012 employment start-date or later) have the options to have their H-1B cap petitions submitted or resubmitted to USCIS on or after April 1, 2013 (October 1, 2013 employment start-date or later) for the Fiscal Year 2014 H-1B visa quota. They can also consider other immigration options such as other nonimmigrant work status and self-petition green card filings, if eligible.

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