NEW RULE TO PREVENT ABUSE IN H-1B PETITIONS
-Sudhir Shah, Advocate, Mumbai

US Citizenship and Immigration Services (USCIS) on 19th March, 2008 modified the selection process and prohibited multiple filings of H-1B visa petitions by announcing an interim rule.

The Non-Immigrant category H-1B visas are meant for specialty occupation workers. It facilitates US Employers, in need of employees, to fill up the vacancies in their business which require degree holders. Normally, if a US Employer desires to employ a foreigner, it is required to obtain Labor Certification, a certificate from the Labor Department to the effect that no US worker is available or ready and willing to work for the job offered. Once the Labor Department certifies to this effect then the US Employer is required to file petition with USCIS under different employment based preference categories and depending upon the category in which the petition is filed and from which country the employee is invited, it may take anything between 1 to 10 years for the foreign employee to receive the immigrant visa and travel to US to work there.

However if the job is of such a nature which may require a degree holder to carry out the same, then without obtaining a Labor Certification, filing petition under employment based preference category and waiting for the visa to become available, the US employer can invite a foreign worker who possesses the right degree to work with it on H-1B visas. The yearly quota of H-1B visa is restricted to 65,000. Out of that 10 % i.e. 6500 visas are reserved for nationals of Chile and Singapore. Additional 20,000 visas are available to those aliens who have obtained masters or higher degrees from a US university. Certain US government organizations and charitable hospitals as well as universities are exempt and they may invite alien graduates to work with them. They are not counted in the 65,000 and 20,000 H-1B caps.

The year for the quota starts on 1st October and ends on 30th September of the next year. Petitions to qualify for H-1B visas are accepted from 1st April of every year. For the year 2008, on 2nd April, 2007(1st April was a holiday) USCIS received almost 1,23,000 petitions. It therefore had to stop accepting petitions and lottery style select 65,000 petitions from the 1,23,000 petitions which it had received. It appears that knowing that the demand for H-1B visa would exceed the quota numbers, US employers had filed multiple petitions for a single employee. This appears to have been noticed by USCIS and thus to prevent such mischief on 19th March, 2008 USCIS announced an interim rule on H-1B visa which prohibits US employers from filing multiple H-1B petitions for the same employee.

The rule is brought in to ensure a fair and orderly distribution of available H-1B visas. It says that USCIS will deny or revoke multiple petitions filed by a US employer for the same H-1B alien worker. In such cases USCIS will not refund the filing fees.

The interim rule however makes an exception. Whilst prohibiting multiple filings by a US Employer for the same H-1B alien employee, it permits a US parent company and its US subsidiary company from filing petitions on behalf of the same alien employee for different positions based on a legitimate business need. Thus an ‘A’ a US company can file H-1B petition for an alien employee ‘X’ for the position of a “system analyst”. Simultaneously a US ‘B’ company, which is a subsidiary of “A” company can also file H-1B petition for alien employee ‘X’ for the position of “system manager” and a US company ‘C’, another subsidiary of US Company ‘A’, can also file H-1B petition for the very same alien employee ‘X’ for the position of “system engineer”.

The rule do not make it clear whether petitions filed by different US companies, not connected with each other as parent and subsidiary, can file or are prohibited from filing, petitions for one and the same alien employee. It is therefore likely that an alien employee will allow more then one US employers to file H-1B petition for himself. Once the authorities will learn about this they will enact another rule to prohibit such mischief also.

At the moment it is learnt that many Indian computer professionals have applied for positions with several US employers without informing them and have accepted offers for employment from many of them and are inducing all of them to file H-1B petitions without intimating to either of them that other companies too are filing H-1B petitions for them. They would then wait and watch and accept the position of the company whose petitions are accepted and approved!