Today, the day before we will file H1b applications for the lottery, USCIS presents us with a brand-new memo that will likely add to the 2018 adjudication chaos. The memo is based on the case of Matter of S-Inc which was reopened by USCIS on January 11, 2018 for the ‘purpose of making revisions’- presumably to ensure the administration could implement new policy by this cap season.
What is the main message of the memo?
An H-1B application will be denied or revoked if:
1. If H1b applications are filed for the same beneficiary by multiple employers, even if not with same ownership and control, and
2. There is no legitimate business need for multiple applications.
USCIS will look beyond the corporate relationship of the entities filing the H1b applications. They will look at the following (and likely more):
a. Familial ties
b. The proximity of locations (of work)
c. Leadership structure (they will find yet another use for the organizational charts we have to submit!).
d. Employment history (of the employee)
e. Similar work assignments (new use for the itineraries)
f. Substantially similar supporting documentation- (such as similar job descriptions, vendor letters, similar/same end client)
Even a case is withdrawn from one employer, unfortunately, USCIS will deny the case for the employer’s case that is not withdrawn.
So, what to do now?
- It is likely too late for many to inquire into whether multiple applications are being filed for their employees.
- Even if a second application is being filed by an unknown employer, hopefully, there will not be similar documentation and it will be clear the cases are not similar.
- Be prepared that even if the cases are dissimilar, problems will occur because USCIS is looking for ways to deny.
This is very troubling indeed and in essence another blow to the H1b program. Quite often an employer will not know about another application filed by another potential employer of the beneficiary. In addition, there are some niche professions where companies will likely fall into the issues raised by the memo. But even generally, if the job is for a particular profession, it is likely that the proferred position will be similar and the job location might be close. In certain professions, people move from employer to employer. This is true for every industry but even more so for the technology industry that is being targeted.
And the bigger problem will be that even if this memo targets consulting companies, the memo will be applied to all situations. USCIS will now have the discretion to deny more cases based on arbitrary and subjective assessments of ‘related entities’.
In sum, once again, we see this administration by-passing Congress and the rulemaking process to create new policies that fit its nativist/restrictionist intent. No one disagrees reform is necessary- but please, let’s follow the rule of law.
More to come from me after the H1b season…
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