Multiple Filing of H1B Petitions
Posted Jan 16, 2009
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As we approach another H1B cap season, questions arise about the H1B lottery and the likelihood of success under that so-called "random lottery selection" method. Also of concern are multiple H1B filings. These questions come from individuals who are entertaining more than one job offer, and who are contemplating having more than one H1B petition filed on their behalf in order to increase their chances - or "entries" - in the lottery. Other problems pertaining to multiple H1B filings arise when employers file relatively high volumes of H1B cases, in part due to the need to increase their odds of getting the number of H1B workers they need. This information on matters of multiple H1B filings, both from the standpoint of the employer and the individual, should be useful to many MurthyDotCom and MurthyBulletin readers.
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Lottery History : Guessing the Odds
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There is no way to know what the odds will be in the H1B lottery for the upcoming Fiscal Year (FY) 2010. A lottery is anticipated, based on the recent history of the volume of filings exceeding the available cap numbers. This lottery has taken place in the past two fiscal years, FY2008 and FY2009. In FY2009, both the regular and the advanced-degree caps were reached within the first five days of filing. The USCIS had altered the regulations starting in FY2009 (for October 1, 2008 start-date cases) so that the H1B lottery would include cases received within the first five business days in April.
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Those interested in estimating the odds can review the data provided in past articles, available by searching MurthyDotCom. The H1B cap is set at 65,000, but is reduced to 58,200 to allow for specific trade agreements. Separately, there are 20,000 cap exemptions for people with U.S. advanced degrees. In FY2009, the USCIS's preliminary count indicated approximately 163,000 filings, with 31,200 of those requesting the 20,000 advanced-degree cap exemptions. In FY2008, the USCIS indicated receipt of 123,480 cases during the first two days of filing. (Two days of filing were included in the lottery that year, due to regulations in effect at that time.) In that year, the advanced-degree limit was reached a bit later, on April 30, 2007. Currently, in this weaker economy, it is difficult to predict case volumes. However, based on earlier years, it seems likely that there will not be sufficient H1B cap numbers in the FY 2010 quota to meet the demand overall, and so it is expected that there will be a lottery consisting of the cases received within the first five days, starting with April 1, 2009.
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Multiple H1B Filings by Individuals
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In past years, it was permissible for a single foreign national to be the beneficiary of multiple H1B petitions filed by different employers. It is not permissible for an employer to file multiple petitions on behalf of one foreign national. Violation of this regulation could result in rejection or denial of all H1B petition/s.
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There is nothing inherently wrong with obtaining more than one job offer, and accepting both jobs, when employment is contingent upon H1B and approval. However, individuals engaging in this practice need to be careful about employment contracts and other agreements committing to employment. If they make multiple commitments, and end up with multiple H1B approvals, they will not be able to meet their legal and ethical commitments to the different employers. They also should be mindful of the need generally to deal fairly with prospective employers. This is particularly true for foreign students who are starting their professional careers within specialized fields involving limited professional circles.
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Individuals with multiple sponsors should also be wary of employers that seem to be too willing to sponsor. Such employers have come under scrutiny for a number of reasons, and, as explained below, may have difficulty obtaining H1B approvals.
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Volume Filing by Employers Disproportionate to Current Number of Employees
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Employers find themselves in a difficult situation because of the H1B cap and lottery. They must anticipate their employment needs well in advance, and can reasonably expect that not all of their cases will be selected. Thus, many employers file far more H1B cases than they actually require, in an effort to get enough approved to fill their employment needs.
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These volume filings have created difficulties for some employers, particularly in instances where the number of filings is significantly disproportionate to the number of current employees. The USCIS often questions an employer with, for example, twenty current employees, as to why fifty H1B cases have been filed. The employer must be able to demonstrate available employment for all of those prospective employees. While this may be appropriate in periods of expansion and growth, the employer should expect to have to explain and document the existence of bona fide positions for the sponsored foreign nationals.
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The goal of filing the H1B is to obtain an approval for a needed worker. It is permissible to file as many H1Bs as are needed to fill the employer's needs. Employers simply need to be cautious about over-filing, as it can be counter-productive, resulting in high rates of denial.
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Past Volume Filing
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Employers who may have filed disproportionate numbers of H1B petitions in past years may also be questioned. This occurs when the number of employees listed on the current H1B petitions does not reflect the employment of those for whom petitions were filed in the past. For example, if an employer has twenty employees, and obtains approvals for fifty additional H1B employees in FY2009, then questions could arise during the FY2010 filings if the H1B filings do not reflect an appropriate increase in the number of employees.
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There can be a number of reasons that the petitioned employees are not all working for the company, or that the overall number of employees did not increase by the number of filings. Employees may change jobs, or may have been the beneficiaries of multiple petitions and declined the employment. In these situations, it is important to have proper, thorough documentation of the termination of the employment and the withdrawal of the H1B petitions.
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Employers who have concerns in this regard should contact the Murthy Law Firm to consult with an experienced, knowledgeable attorney in advance. If petitions need to be withdrawn, then this should occur promptly. If the time for a prompt withdrawal has passed, it is better to withdraw as soon as possible, than to wait until a Request for Evidence (RFE) is issued. Failure to withdraw also generates other significant potential problems with regard to violations of the Labor Condition Application (LCA) wage requirements.
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Conclusion
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H1B lottery timing and uncertainty raise many concerns, including questions as to how many cases one should file to increase the odds of success. We provide guidance in order to help MurthyDotCom and MurthyBulletin readers deal with this problem. Based on experience in our law firm, which, unfortunately, is derived primarily from cases brought to us after problems have arisen, we urge our readers to obtain proper advice and input in advance, to anticipate and avoid problems. This is extremely important when working with a limited benefit, such as the H1B. We will continue to keep MurthyDotCom and MurthyBulletin readers informed of developments related to the H1B cap.