On March 23, 2018 the U.S. Citizen and Immigration Services released information about their policy related to related entities filing more than one H-1B petition. The new policy is the result of the decision Matter of S- Inc., Adopted Decision 2018-02 (AAO Mar. 23, 2018), coming from the Administrative Appeals Office.
The new policy is important because it clarified how the USCIS will approach petitions for H-1B visas which are filed by related entities.[note]https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-3-23-PM-602-0159-Matter-of-S-Inc-Adopted-Decision-Package.pdf[/note]
What is a related entity?
A related entity is any petitioner who files a cap-subject H-1B petition for the same person for “substantially” the same job. It does not matter if the entities in question are owned by the same people or under joint control.
One major, important take-away from this policy memo is that related entities can have different articles of incorporation, different parent companies, and different federal employer identification numbers (FEINs) – but still be considered to be related entities. If the position is considerably the same, and the end-client is the same then the entities can be viewed as related entities for the purpose of the filing.
There are many factors to be considered when determining whether the entitles are related. There are the obvious: parent company, subsidiary or affiliate relationship. Now, it is clear, that factor such as employment history, similar supporting documentation, familial ties, and leadership structure will be considered in making the determination.
If the related entities can show that there is a legitimate purpose for the multiple filings, the petition will continue through the process. If there is no clear, legitimate purpose then the petitions will be revoked and / or denied.
Legitimate Purpose – how is it decided?
If there is a legitimate business purpose, then the H-1B petitions from the related entities can continue through the process. The USCIS will be looking into a very important factor in making this determination: the job opportunity in question. The job has to be three things: genuine, available to the beneficiary (not just a potential job opportunity), and materially distinct. If the USCIS finds that the jobs are materially identical – it will fail the legitimate purpose test.