by Julia Funke, Esq., Managing Attorney
USCIS is conducting a second selection round for the FY 2024 H-1B cap because USCIS didn’t meet the congressionally mandated numerical cap in the first round. The low number of applications was due to the fear and hesitance of H-1B applicants and employers alike. USCIS had warned that they would be strict about people breaking the rule of submitting multiple petitions. They cited a sharp increase in registrants with multiple registrations submitted on their behalf. This caused confusion about what the rule does and does not prohibit. As a result, many selected registrants with more than one job offer for the FY 2024 H-1B cap chose not to file, even when they had not actually violated the multiple petition rule.
The multiple petition rule states that an employer cannot submit more than one cap-subject H-1B petition for the same person in the same fiscal year. USCIS provided instructions stating that “related entities” include petitioners, even if they are not legally connected through corporate ownership and control. If these related entities submit H-1B petitions for the same person and the same job, it is considered a violation of the rule. This rule is broken when an H-1B petitioner collaborates with another company, entity, or beneficiary to unfairly increase their chances of being selected. However, it is okay for unrelated employers to file petitions for the same person if they are for separate, independent positions at each company.
Many employers were not aware that their candidates had registered through additional employers for separate opportunities. When they did eventually learn the circumstances of their employees, and after USCIS’ announcement, many were discouraged from filing. However, the rules are clear that a prospective beneficiary may have registrations submitted on their behalf through more than one employer. This means that those who pursued more than one job opportunity for the FY 2024 H-1B cap did not violate any rule, as long as each position was legitimate, separate, and independent. Regardless, the severe tone of USCIS’ announcement discouraged and caused fear in many people, resulting in USCIS receiving fewer H-1B petitions in the first round.
USCIS has started reviewing the first-round petitions and here are the early results: 34% of the cases from a sample of 100 filed through ILBSG got approved without any issues. Of those 34 cases, only 12 were in premium processing, while 22 received early approvals in regular processing only. This shows there is no clear advantage of premium processing in terms of outcome, other than an expedited decision. Only 4 cases received additional requests for evidence. The rest are still pending.
The only multiple petition issue raised was for two related companies that applied for the same person for different jobs, which is allowed. No other issues were raised for those who applied through unrelated companies for separate jobs.
Overall, the H-1B process has been positive so far. USCIS will continue to look into cases where companies tried to undermine the system, but genuine applications should not be discouraged from filing. ILBSG has extensive experience dealing with multiple petition inquiries and we are confident in our approach.
If you are selected in the second round for the FY 2024 H-1B cap, you can file your petition between August 2 and October 31, 2023. If you need help deciding whether to file, please contact us. We recommend filing early for the best chance of success.