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Ban on Multiple H-1B Cap Petitions for Same Employee Clarified

3/29/2018

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The US Citizenship and Immigration Services (USCIS) has issued a policy memorandum clarifying the prohibition on multiple H-1B filings by “related entities (such as a parent company, subsidiary, or affiliate).”

 Under USCIS regulations (8 C.F.R. § 214.2(h)(2)(i)(G)), an
 employer may not file more than one cap-subject H-1B for the same foreign national.  The rule also prohibits related entities from filing for the same employee, and describes related entities as "...such as a parent company, subsidiary, or affiliate."

In a recent Administrative Appeals Office (AAO) decision, the US government decided that "related entities " includes companies that are not just related through common ownership or control. The AAO found that the words "such as" in the regulations meant that the examples following those words  - "parent company, subsidiary, or affiliate" were just that - examples.

The AAO found that the Petitioner in Matter of S, Inc. was related to another company that filed a H-1B petition for the same employee even though both petitioners had different FEINs, locations,management, and ownership. USCIS construed related entities" as petitioners "...who submit multiple petitions for the same beneficiary for substantially the same job. Whether two jobs are “substantially the same” is an issue of fact that we determine based on the totality of the record. Some factors relevant to relatedness may include familial ties, proximity of locations, leadership structure, employment history, similar work assignments, and substantially similar supporting documentation."

In the instant case, the fact that both petitioners intended to place the foreign national in the same position for the same end client through the same mid-vendor caused the AAO to find that the petitioners were related. Given that there was no legitimate business need for two petitions, the H-1B approval was revoked.

If you have any questions about this case, or any H-1B or employment-based immigration matter, please contact Elaine Martin.

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No Premium Processing for H-1B Cap Cases

3/22/2018

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U.S. Citizenship and Immigration Services (USCIS) has unexpectedly announced that it will temporarily suspend premium processing for all H-1B cap petitions that are filed for Fiscal Year 2019. This affects both regular and master's degree cap petitions that lawyers will be filing on April 2, 2018. The suspension is expected to last until September 10, 2018.

USCIS states that the reason for suspending Premium Processing is so that the agency can:


  • Process long-pending petitions, which we have currently been unable to process due to the high volume of incoming petitions and the significant surge in premium processing requests over the past few years;
  • Prioritize adjudication of H-1B extension of status cases that are nearing the 240 day mark.


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Happy St. Patrick's Day!

3/15/2018

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St. Patrick's Day 2011 on the Great Wall of China.

Most of my readers know that I am from Ireland. 10% of Americans have Irish ancestry, and this week millions of other Americans - and people around the world - will pretend to be Irish!.
 
However, the Irish weren't always welcome in the United States. Does this sound familiar?

The refugees seeking haven in America were poor and disease-ridden. They threatened to take jobs away from Americans and strain welfare budgets. They practiced an alien religion and pledged allegiance to a foreign leader. They were bringing with them crime. They were accused of being rapists. 
 
This is an extract from https://www.history.com/news/when-america-despised-the-irish-the-19th-centurys-refugee-crisis, describing Irish immigrants. Many Irish emigrated to the US in the early 1800s to work in construction, including the Erie Canal project. It is estimated that as many as 4.5 million Irish arrived in America between 1820 and 1930.

Between 1820 and 1860, the Irish constituted over one third of all immigrants to the United States. In the 1840s, they comprised nearly half of all immigrants to this country. Many of these immigrants arrived after the Great Irish Famine from 1845-1849. They were desperately poor, uneducated, starving, diseased and often did not speak English. They faced enormous discrimination in the U.S., like many of today's immigrants. Today, people boast about their Irish heritage and  St. Patrick's Day is a huge celebration.

Test your knowledge of Ireland with this (difficult!) quiz.​

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    Lawyer Elaine Martin | Top Attorney Immigration
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    Elaine Martin has been practising US and global immigration law since 1997. She is an immigrant herself (from Ireland), so has a special understanding of the legal and emotional challenges involved in relocating to a new country.

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Disclaimer
The information you obtain at this site is not, nor is it intended to be, legal advice from Dallas lawyer Elaine Martin. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until an attorney-client relationship has been established.
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