NOIDs for “Virtually Identical” Cap-Subject H1B Petitions

The U.S. Citizenship and Immigration Services (USCIS) generally prohibits a company from filing multiple cap-subject H1B petitions for a single beneficiary in the same cap year. Related companies also face such restrictions, with some exceptions, but this aspect of the rule appears to have gone largely unenforced in previous years. However, for the fiscal year 2015 (FY15) H1B lottery, the USCIS has been issuing notices of intent to deny (NOIDs) when virtually identical petitions have been filed for the same beneficiary by two or more potentially related companies.

Same Company

In 2008, the USCIS issued an interim regulation intended to stop a company from trying to increase the chances of having a case selected in the H1B lottery by filing multiple petitions on behalf of one individual. Under this regulation, if an employer files more than one H1B cap-subject petition for the same person in the same fiscal year, the USCIS has the right to deny or revoke any and all H1B petitions filed by the employer on behalf of that individual.

Related Company

The regulation also prohibits companies that are related to one another from each filing a cap-subject H1B petition for the same individual, unless the job offers are “…for distinct positions and therefore [the companies] have a legitimate business need to file two or more separate H1B petitions on behalf of the same alien.” That is, each employer must have a separate, bona fide offer of employment in a specialty occupation at the time of filing.

The regulation, however, does not define the precise meaning of the term “related” in this context, and simply lists examples, “such as a parent company, subsidiary, or affiliate.” Thus, when this issue is raised by the USCIS in the context of a NOID or a request for evidence (RFE), the burden is on the petitioner to present legal arguments and evidence to demonstrate why the case is approvable.

FY15 NOIDs Based on Similarity of Petitions

For cap-subject H1B petitions filed for FY15, the Murthy Law Firm has received calls from petitioning employers who have been issued NOIDs based on the similarity of two or more H1B petitions filed for a single beneficiary by different companies. The USCIS is suspicious of cases in which filings for the same person share key details. Suspicions are that, although such petitioning companies have different federal employer identification numbers (FEINs), they are acting in concert in a way that indicates the companies are related. Commonly identified factors typically include end-clients with the same identity, and location and job descriptions that are identical or virtually identical. The USCIS also points to similarities in supporting documents.

Evidence to Overcome NOIDs

The NOIDs offer two options to overcome the likelihood of having the cases denied. First, the NOIDs request proof that the petitioning companies are not related. This can be evidenced by various documents that demonstrate corporate existence, structure, and ownership. Alternatively, if the companies are related, the NOIDs ask for evidence of how the companies each have separate, distinct business needs. This typically is understood to mean that there must be more than one distinct job opportunity, rather than simply an effort to have a backup plan in the event that one employer’s H1B petition is not selected in the lottery.

Conclusion

Employers filing cap-subject H1B petitions in the future should be aware of the multiple petition prohibition and its application to companies that are arguably related to one another. The USCIS is clearly capable of identifying and questioning situations in which more than one company has filed a similar H1B petition for the same beneficiary. For those who are facing NOIDs on this issue, it is important to act quickly, due to the short deadlines for NOID responses. Murthy Law Firm attorneys are available to provide guidance and representation in responding to such NOIDs.

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