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IMMIGRATION
By:
Michael Phulwani, Esq.,
David H. Nachman, Esq.
and
Rabindra K. Singh, Esq.
CAN SUBMITTING MULTIPLE H-1B PETITIONS
FOR A FOREIGN NATIONAL WILL INCREASE
CHANCES OF SELECTION DURING THE
LOOMING H-1B LOTTERY IN APRIL 2016?
A
s a reminder to all U.S.
employers, H1B season is
almost here! United States
Citizenship & Immigration Services
(“USCIS”) will start accepting new H1B
petitions for fiscal year 2017 on Friday,
April 1st, 2016. As the filing date
rapidly approaches, prospective H1B
employers should start to identify
current and future employees who will
require sponsorship for new H1B
petitions. Also, H1B employers will
want to start considering a backup plan
for those H1B candidates that do not
ʺwin the lotteryʺ.
The statute provides for an annual quota
of 65,000 (for beneficiaries holding a U.S.
Bachelors degree or its U.S. equivalent)
H1B visas that can be issued in any
given fiscal year, which runs from
October 1st to September 30th.
However, all H1B nonimmigrant visas
are not subject to this annual cap. Up to
6,800 visas are set aside from the cap of
65,000 during each fiscal year for the H
1B1 program designed specifically for
the Nationals of Chile and Singapore.
Unused numbers in the H1B1 pool are
made available for H1B use for the next
fiscal year.
Thus, in effect, only 58,200 H1B visas
are granted each year plus the
additional 20,000 H1B visas which are
reserved for individuals who have
received a master’s degrees or higher
from a U.S. college or university. In
another upcoming article, we will
discuss, in detail, whether or not every
master’s degree from a U.S. academic
institution would qualify an individual
for the H1B master’s cap. Thus, there is
a total of 78,200 H1B nonimmigrant
visas which are subject to the annual
cap.
Last year, within the first week of filing,
USCIS received nearly 233,000 H1B
petitions, including petitions filed for
the advanced degree exemption.
Because the annual quota was met
within days of the first day of filing, on
April 13, 2016, USCIS used a computer
generated random selection process, or
lottery, to select enough petitions to
meet the generalcategory cap and the
20,000 cap under the advanced degree
exemption. As such, only those petitions
selected in the random lottery were able
to proceed to adjudication. We
anticipate the same or even higher level
of H1B visa petitions for this upcoming
H1B filing season.
As a result of the lottery process, many
prospective H1B employers and foreign
national applicants are reaching out to
our Law Office’s immigration attorneys
with a variety of question about the H
1B nonimmigrant visa and the process
for filing these visas. One question that
we are frequently asked is “Can an
employer submit multiple H1B cap
subject petitions during one Fiscal Year?
This strategy is sometimes referred to in
the parlance as “multiple or duplicative
H1B visa filings”. According to the
USCIS guidelines, an employer may not
file more than one H1B petition for each
prospective employee during the fiscal
year.
Therefore, a prospective employee who
qualifies for the “Master’s Cap” of 20,000
cannot file two (2) petitions to
encompass the regular H1B and the
Master’s H1B. The limitation also
precludes an employer from filing
multiple petitions for different jobs for
the same employee but does not
preclude related employers (e.g., parent
and subsidiary companies or affiliates)
from filing petitions for the same
beneficiary. However, the employer
must demonstrate a legitimate business
need to do so and if it fails to meet that
burden, all petitions on behalf of the
beneficiary will be denied or revoked.
In addition, it is important for
prospective H1B employers to
understand that, in some circumstances,
multiple H1B visa petition filings are
permitted if the H1B application is
submitted for the same foreign national
by different employers so long as there
is an “authentic and actual business
need” for each such petition.
Since H1B petitions are likely to be
subjected to a random computerized
lottery system, both H1B employers
and H1B employees continue to share a
sense of nervousness. Thus, filing of
multiple applications by two different
employers for a prospective H1B
employee may be beneficial but, like
most things in life, one has to take the
good with the bad.
As the H1B filing season approaches,
the NPZ Law Group will be preparing
documents for prospective H1B
employers and employees with the hope
that our clients will be the next H1B
lottery winners. Of course, we continue
to highly recommend that H1B
employers and employees prepare their
backup plans in the event that their HB
nonimmigrant visa petitions are not
chosen in the lottery. Of course, please
feel free to contact us with any questions
that you may have at
or you can also call
us at 2016700006 (x107). The
immigration lawyers at the NPZ Law
Group look forward to being of
assistance to you, your friends and your
family members with regard to business
and/or familybased immigration law
matters.
