If I Need a 2nd H1b Visa for 2nd Employer Do I Need Lottery Again

Synopsis

Multiple filings are permitted if they are from different fiscal years. For example, there are instances where petitions from the past financial year are notwithstanding pending in the electric current year. In such cases, it does not announced that there is any prohibition confronting filing again for the same employee. An employer would be well inside their rights to endeavour for an H-1B lottery option again.

Rajiv Khanna

Managing Attorney, Immigration.Com, Contributor Content

Khanna is a member of the Virginia and D.C. Bars and the principal of the Law Offices of Rajiv S. Khanna, PC. Since 1993, he has focused his and the firm's practise on employment and business-based immigration and related administrative and federal audits, investigations and litigation. The firm represents individuals and businesses from every major city in the Us and internationally.

The question most frequently asked during the H-1B lottery season (9th March – 25th March this yr) is whether it is legal for multiple employers to file for an H-1B electronic registration for the same employee? The answer is yes, simply with caveats.

Often, multiple employers are competing to hire the same employee. It is evidently in the best involvement of an employee to accept multiple filings because that increases their chances of being selected in the electronic pick system (lottery). And equally apparently, this could amount to an abuse of the system if there were no checks on multiple filings.

In the year 2018, the USCIS detailed their position on this issue. Multiple filings are permitted as long as they are Non:

• in the aforementioned financial year;
• for the aforementioned employee;
• for substantially the aforementioned position; and
• past employers that are related to each other.

Multiple filings are permitted if they are from dissimilar fiscal years. For instance, there are instances where petitions from the past fiscal year are still pending in the current year. In such cases, it does not appear that at that place is whatsoever prohibition against filing again for the same employee. An employer would be well within their rights to try for an H-1B lottery selection again.

The issue of what is the "aforementioned position" came upward in a instance where two different employers had filed for an H-1B lottery for the same employee, for the same projection, at the same cease client, through the same middle vendor. This, said the USCIS, was evidently the aforementioned position, and thus impermissible. But what if ii or more than positions have a similar clarification? Manifestly, a professional is expected to work in their own profession. The chore descriptions tin be quite similar fifty-fifty when they work for unrelated employers at unrelated jobs. That would not exist prohibited. Such jobs are merely similar in description, not in substance.

The last office of the test, whether the employers are related to each other, is counterintuitive if one does not understand the underlying policy of stopping people from "gaming the system." The USCIS approved this ruling on policy:

"We reject to prefer a construction that employers could so easily circumvent through corporate police stratagems. Instead, nosotros construe "related entities" to include petitioners, whether or not related through corporate ownership and control, who submit multiple petitions for the same beneficiary for essentially the same job. Whether two jobs are "substantially the same" is an issue of fact that we determine based on the totality of the tape. Some factors relevant to relatedness may include familial ties, proximity of locations, leadership structure, employment history, similar work assignments, and substantially similar supporting documentation."

Thus the definition of "relationship" between employers is far broader than that under corporate or business concern laws. Under these laws, every corporation is considered to be a separate legal entity whose actions should have no bearing on the actions of another separate legal entity. Not so under clearing law, equally the factors noted to a higher place in the ruling betoken.

At that place is ane exempt situation where related entities could file petitions for the same individual. The employers must demonstrate "a legitimate business organisation need to file more than one H-1B petition on behalf of the aforementioned" individual. That exemption has non been elaborated much, but there could at least theoretically be such a legitimate need.

The caveats and complications attached to multiple filings brand information technology clear that the USCIS tin call upon each participating employer to justify their filing. As long as that is understood, multiple H-1B lottery filings for the same prospective employee are permitted.

( Originally published on Mar 02, 2021 )

(Disclaimer: The opinions expressed in this column are that of the author. The facts and opinions expressed here do not reflect the views of www.economictimes.com.)

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Source: https://economictimes.indiatimes.com/nri/work/decoder-could-multiple-h-1b-lottery-petitions-be-filed-for-the-same-employee/articleshow/81288168.cms

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