stoph1babuse.github.io

View on GitHub

image

H-1B Related Laws and Regulations

We would like to share some related laws and regulations for everyone reference.

Law

The primary law basis for H-1B is the Immigration and Nationality Act (INA) Section 214 (g).

  1. H-1B quota is based on individual

     INA Section 214 (g)(1): 
 The total number of aliens who may be issued visas or otherwise provided nonimmigrant status during any fiscal year (beginning with fiscal year 1992)

  2. Individual with multiple approved H-1B petitions count once

     INA Section 214 (g)(7):
 Where multiple petitions are approved for 1 alien, that alien shall be counted only once.

Regulation

DHS/USCIS H-1B Regulation in 2008 (RIN 1615-AB68) Page 29

  1. DHS/USCIS confirmed H-1B quota is per individual

     By statute, USCIS may only allot one cap number per alien beneficiary, regardless of the number of petitions that were filed on the alien's behalf. INA section 214(g)(7), 8 U.S.C. 1184(g)(7).

  2. USCIS only approve 1 petition for 1 individual before the new FY starts

     As a general practice, when USCIS approved a petition for a specifically-named individual, it denied any duplicate petitions subsequently adjudicated

If 1 individual has multiple H-1B jobs, a.k.a concurrent filing, the 2nd petition shall be filed after the 1st petition is approved and activated

8 CFR 214.2(h)(2)(i)(H)(1)(i)

    (H) H-1B portability. An eligible H-1B nonimmigrant is authorized to start concurrent or new employment under section 214(n) of the Act upon the filing, in accordance with 8 CFR 103.2(a), of a nonfrivolous H-1B petition on behalf of such alien, or as of the requested start date, whichever is later.
      (1) Eligible H-1B nonimmigrant. For H-1B portability purposes, an eligible H-1B nonimmigrant is defined as an alien:
        (i) Who has been lawfully admitted into the United States in, or otherwise provided, H-1B nonimmigrant status;

Submitting electronic registration = intend to file H-1B petition

DHS/USCIS H-1B Regulation in 2019 (RIN 1615-AB71) Page 184

    As noted elsewhere in this rule, DHS will require registrants to attest that they intend to file an H-1B petition for the beneficiary in the position for which the registration is filed.

USCIS prohibits same employer to file multiple petitions on behalf of the same individual beneficiary

Note: This is an regulation, NOT a law

DHS/USCIS H-1B Regulation in 2008 (RIN 1615-AB68) Page 30

    USCIS recognizes that, by statute, multiple filings of H-1B petitions are contemplated. See INA sec. 214(g)(7), 8 U.S.C. 1184(g)(7).
    Nevertheless, USCIS finds that this rule's preclusion of duplicative H-1B filings is consistent with the statute. Section 214(g)(7) of the INA, 8 U.S.C. 1184(g)(7), states that “[w]here multiple petitions are approved for 1 alien, that alien shall be counted only once.” 
    USCIS interprets this statutory language as applying to an alien who has multiple petitions filed on his or her behalf by more than one employer. 
    Therefore, an alien who will be performing H-1B duties on behalf of two separate petitioners will be counted only once against the cap. 
    USCIS does not believe that the statutory language at section 214(g)(7) of the INA, 8 U.S.C. 1184(g)(7), was intended to allow a single employer to file multiple H-1B petitions on behalf of the same alien. 
    Such a broad interpretation would undermine the purpose of the H-1B numerical cap since multiple filings can result in the misallocation of the total available cap numbers.
    
    ...
    
    For these reasons, USCIS believes that it must curtail both duplicative and multiple petition filings by the same employer in order to prevent future fairness problems similar to those USCIS experienced with its administration of the FY 2008 random selection process for the 65,000 cap.
    
    ...
    
    This rule does not, however, preclude related employers from filing petitions on behalf of the same alien. 
    USCIS recognizes that an employer and one or more related entities (such as a parent, subsidiary or affiliate) may extend the same alien two or more job offers for distinct positions and therefore have a legitimate business need to file two or more separate H-1B petitions on behalf of the same alien.

We DID NOT find any law that allow each individual to file multiple petitions/registration - this regulation is just an interpretation by USCIS.