This evening, the Ninth Circuit Court of Appeals upheld a lower court’s decision to temporarily prevent the government from enforcing a travel ban implemented via executive order on January 27, 2017. The travel ban has not been in effect since a federal district court granted a temporary restraining order (TRO) against it on February 3. The Trump administration now has the option of appealing this decision to the U.S. Supreme Court. For the time being, however, the TRO remains in place, meaning that the travel ban still cannot be enforced.
The March 2017 Visa Bulletin was released this afternoon. As usual, there is no movement in the dates for filing (DF) chart. In the final action (FA) chart, the employment-based, second preference (EB2) category for India advances by six weeks, to June 1, 2008. EB2 China advances by one month, to December 15, 2012. For the employment-based, third preference (EB3) category, India sees no movement, remaining with a cutoff date of March 22, 2005. EB3 China moves ahead by more than five months, to March 15, 2014. EB3 Philippines also advances, to a new cutoff date of March 15, 2012.
Incentive to File Multiple H1B Cap Petitions
H1B petitions for FY18 will be filed between April 3rd and April 7th, 2017 for employment to begin October 1st, 2017. In light of the expectation that the number of these H1B petitions will, once again, greatly exceed the annual limit, or “cap,” foreign nationals naturally wish to increase their chance of selection in the H1B lottery. Because this is a random lottery, being listed as the beneficiary in multiple petitions potentially can work to one’s advantage. However, there are limitations.
H1B Multiple Cap Petitions: What is Acceptable?
The law permits a foreign national to be the beneficiary of more than one cap-subject H1B petition, provided that there is a legitimate and actual business need for each petition. This means, for example, that two unrelated companies could file H1B cap-subject petitions for the same beneficiary for separate positions. This also means that two related companies may be able to file for the same beneficiary. These two companies, however, must each be prepared to establish that there was a legitimate, actual business need for filing both petitions. If they cannot establish such a need, both petitions typically would be denied, and/or prior H1B approval could be revoked by the U.S. Citizenship and Immigration Services (USCIS).
H1B Multiple Cap Filings: What is not Acceptable?
A single company cannot file multiple cap-subject petitions for the same individual. Similarly, related or affiliated companies cannot each file cap-subject petitions for the same beneficiary, unless there truly are two separate job opportunities that can be clearly documented. Companies choosing to file in this manner must be able to demonstrate that that each petitioning company has a genuine, distinct job opportunity available. Petitioners should understand that such cases tend to be closely scrutinized by the government, and the onus is on the companies to convince the USCIS that the multiple filings were not done in order to gain an advantage in the H1B cap selection process. If the government is not swayed by these arguments, the USCIS can deny or revoke all H1B petitions the related companies filed for the foreign national.