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H-1B Cap Multiple Filing Limitation - USCIS adopts Administrative Appeals Office decision

US Citizenship and immigration Services (USCIS) has adopted Matter of S- Inc., an Administrative Appeals Court (AAO) decision discussing multiple cap-subject H-1B filings. The decision substantially expands prohibitions on multiple filings already in place, making it far more difficult for different employers to file separate H-1B cap petitions for the same individual in the same fiscal year.

It has long been prohibited for “Related Entities” to file multiple cap-subject petitions for the same individual - even if with different job titles or descriptions. However, “related entities” had typically been interpreted the same way as in the L-1 Intracompany Transferee visa context (parent company, subsidiary, or affiliated in terms of same or similar ownership).

Matter of S- Inc. involves two H-1B petitioning employers who clearly used this definition of “related entity.” Two employers with no relation in terms of ownership - both were personnel companies supplying software professionals to end-clients - each filed an H-1B for the same employee for a position working at the same ultimate client site on the same project.

USCIS disallowed both petitions as “related entity” petitions even though the petitioning companies had no ownership relationship to each other. If anything, it appears they may have had a client/vendor relationship with one supplying personnel to the end client through the other company.

The case was appealed to the AAO, which sided with USCIS and agreed that the companies were “related entities” for purposes of the regulation at 8 C.F.R. §214.2(h)(2)(i)(G) preventing simultaneous related entity petitions for the same individual. In the future, employers and H-1B beneficiaries will need to be very careful to ensure the lack of a relationship.