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H-1B Series: Multiple Filings of H-1B Petitions: is it Possible? Jian Joe Zhou, Attorney at law As some of you may already be aware, more than 130,000 H-1B petitions were filed on April 2, 2007 (the earliest day that USCIS accepted H-1B applications for the fiscal year of 2008, which started on October 1, 2007). A similar turnout is predicted for April 1, 2008 when petitions for H-1B visas will be accepted by the USCIS for the fiscal year of 2009. Due to a combination of the sheer volume of these applications and the limited fiscal quota set for H-1b visas (65,000 regular quota plus additional 20,000 for US advanced degree holders), USCIS utilizes a randomized lottery system to select petitions for review. This system only accommodates cases received on the day the quota is running low and one day thereafter. In the case of fiscal year 2008, the regular H-1B quota ran out on the first day that USCIS began to accept applications. As a result, all petitions received for the regular H-1B quota during the first two days of filing (April 2 and 3, 2007) were put into the lottery system. Being a game of chance, only less than half petitions were selected by the lottery system. This policy has thus brought the issue of multiple filings to the forefront of many people’s minds. After all, having more than one petition in the pool would technically increase the chances of being selected for a visa number. Is it then possible to have more than one H-1B petitions in the lottery for an alien in one given year? In the following section, we will address the issue of multiple filings. Generally, there are two scenarios of multiple filings: Scenario 1—TWO (2) or More Employers EACH Filing ONE (1) Application for the Same Alien worker It is legally acceptable for different employers each file an H-1B application for the same alien at the same time. Each employer has an independent legal standing to file H-1B petition for an alien regardless whether there is another employer(s) also filing an H-1B petition for the same alien. Some employers consider H-1B petition as a valuable and effective benefit to retain or attract alien talent, and are willing to spend money to compete with other employers in the lottery system. There is no law prohibiting such a practice. With that said, multiple filings for one individual by two (2) or more employers definitely increase the burden for the USCIS processing system. Additionally, it may not be professional nor ethically appropriate if the alien fails to disclose to all sponsoring employers his/her multiple H-1B filings. However, because there are no laws prohibiting different employers from filing H-1B petitions for the same alien, the professional or ethical responsibility of informing all involved parties will rest upon the alien. It would be unethical for an alien to convince an employer to spend several thousands dollars to file H-1B while he/she uses the process only as a vehicle to secure quota and is readily to start working for another employer if another H-1B is approved. The H-1B sponsoring employer may have a civil claim against the alien if it believes that the alien mislead or misrepresent during the process. Understandably, with the disclosure of potential multiple filings, some employers may decide not to go ahead with the process. It is the alien’s call to balance ethics and secure H-1B quota issues. In complicated situation such as filing multiple H-1B petitions, we recommend both the employer(s) and alien to consult experienced lawyers for legal opinions. Note: Similarly it is possible to have two employers, one subject to and one not-subject to the H-1B quota, to file for the same alien. However, professional and ethical considerations should still apply. Scenario 2—ONE (1) Employer Filing TWO (2) or More Application(s) An employer has the legal right to file ONE petition for each alien for any given year. Although there are no laws specifically disallowing such actions, the practice of filing duplicate applications for the same individual is generally considered an abuse of the filing system. Though USCIS has been criticized for not being able to create an efficient system to stop the one-employer-multiple-filings situation, we do NOT recommend an employer to file duplicate H-1B cases for one alien. Conclusion While it is legally possible to have multiple filings in the H-1b lottery selection pool when each petition is submitted by a different employer, it may not be professionally nor ethically appropriate to do so without related disclosure to all employers. It is up to the discretion of the alien applicant to disclose his/her on-going applications to each prospective employer. But a beneficiary alien should in any case not misrepresent or mislead an employer to file an H-1B petition while there is another H-1B petition to be filed by another employer at the same time. When multiple filings are submitted by the same employer, it is generally not allowed and considered an exploitation of the system. --------------- --------------- At Zhang & Associates, P.C., our attorneys and supporting professionals are committed to providing high quality immigration and non-immigration visa services. We specialize in NIW, EB-1, PERM and I-485 cases. In the past twelve years, we have successfully helped thousands of clients get green cards. If you plan to apply for a green card, please send your CV to Attorney Jerry Zhang (info@hooyou.com) for a free evaluation. Houston: 7324 Southwest Freeway, Suite 1088, Houston, TX 77074 In the moment of dynamics, our clients can always count on us. (02/27/2008) For more immigration news, please click here |
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