It is legal for an H1B employee to benefit from multiple lottery registrations as long as the lottery registrations are not made by “related” firms and the employment offers are genuine (bona fide).
Because of a new declaration issued by the USCIS, this has caused considerable misunderstanding among companies and employees. Every employer who registers an H1B employee for the lottery must now state “under penalty of perjury:”
“[T]hat all of the information contained in the submission is complete, true, and correct. For FY 2023, the attestation that is required before submission will indicate, “I further certify that this registration (or these registrations) reflects a legitimate job offer and that I, or the organization on whose behalf this registration (or these registrations) is being submitted, have not worked with, or agreed to work with, another registrant, petitioner, agent, or other individual or entity to submit a registration to unfairly increase chances of selection for the beneficiary or beneficiaries in this submission.”
If USCIS determines that this attestation was false and incorrect (for example, that a company collaborated with another entity to submit multiple registrations for the same beneficiary in order to unjustly maximize the probability of selection for that beneficiary), USCIS will rule that the registration was not adequately completed. Because the registration was not properly submitted, the prospective petitioner would be ineligible to file a petition based on that registration under 8 CFR 214.2(h)(8)(iii)(A) (1).
The USCIS has the authority to dismiss or cancel a petition based on a registration that contains a fraudulent attestation and so was not legally submitted. Furthermore, USCIS may report the individual or company who submitted a fraudulent attestation to relevant federal law enforcement agencies for investigation and, if necessary, further action. The preceding affirmations clarify an implicit obligation: the need to act in good faith. It should be noted that this was already USCIS policy based on their regulations and interpretive advice.
The regulations provide: “Multiple H-1B petitions. An employer may not file, in the same fiscal year, more than one H-1B petition on behalf of the same alien… filing more than one H-1B petition by an employer on behalf of the same alien in the same fiscal year will result in the denial or revocation of all such petitions.
If USCIS believes that a related entity (such as a parent company, subsidiary, or affiliate) does not have a legitimate business need to file more than one H-1B petition on behalf of the same alien subject to the numerical limitations of section 214(g)(1)(A) of the Act or is otherwise qualified for an exemption under section 214(g)(5)(C) of the Act, USCIS may issue a request for additional evidence, a notice of intent to deny, or notice of intent to withdraw the petition.
If any of the associated entities fails to demonstrate a legitimate business need to file an H-1B petition on behalf of the same alien, all applications filed by the related entities on that alien’s behalf will be refused or cancelled.
On March 23, 2018, the USCIS issued a memorandum interpreting their regulations, rejecting corporate identification as the grounds for non-relatedness:
For the purposes of the regulatory restriction against multiple registrations, the term “connected entities” refers to petitioners who file cap-subject H-1B petitions for the same beneficiary for virtually the same work, whether or not they are related through corporate ownership and management.
Familial relationships, proximity of places, leadership structure, employment experience, similar work assignments, and substantially similar supporting paperwork are all elements that may be important to relatedness. The more similar the records were, the more likely it was that the corporations were attempting to undermine the objective of the random lottery procedure.
The USCIS has strengthened its requirements by including new declarations and imposing a possible punishment of perjury (a federal felony offence). The underlying policy remains unchanged.
Legal Disclaimer: This article is provided for information purposes only.
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