On March 23, 2018, the U.S. Citizenship and Immigration Services (USCIS) issued a policy memorandum adopting the Administrative Appeals Office (AAO) decision in Matter of S-Inc., which looked at the issue of multiple H-1B cap filings by “related entities.” In Matter of S-Inc., the AAO decided that the definition of related entities is not conclusive to those entities that are related by ownership and control. Rather, the AAO concluded that related entities include “those who submit multiple petitions for the same beneficiary for substantially the same job.” Moreover, the AAO decision explained that the following factors are pertinent in determining whether companies filing H-1B petitions are related: familial ties, proximity of location, leadership structures, employment history, similar work assignments, and substantially similar supporting documentation. In issuing their decision, the AAO looked at a case in which two distinct companies filed separate H-1B cap petitions to employ the same beneficiary in the substantively same job, as a Programmer Analyst, and would be performing comparable duties for the same end-client. The AAO concluded that since they were intending to employ the Beneficiary with the same end-client and the Beneficiary would be performing “essentially” the same duties, the companies were therefore related. AAO then looked at whether the two petitioners could demonstrate a legitimate business need to file more than one H-1B petition for the same beneficiary. The AAO clarified that to help determine a petitioner’s “legitimate business need,” they will examine the underlying job opportunity and each job opportunity must be “bona fide, be available to the beneficiary, and be materially distinct.” Therefore, USCIS will now start to deny or revoke the H-1B approval of cap-subject petitions filed by “related entities” for the same beneficiary absent a legitimate business need.
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