Revocation Overturned: Understanding the Multiple H-1B Submissions Rule

Last week I received excellent news – USCIS approved my motion to reopen and reinstate an H-1B approval that had been revoked based on USCIS regulations that prohibit multiple H-1B lottery submissions by the same employer.

The facts of the case are not unusual.? The USCIS revocation was the result of a misunderstanding and misapplication of business immigration law.

The beneficiary, Mr. “H”, was an H-1B lottery winner in March 2022.? Mr. H had been working for his sponsor as an F-1 student pursuant to his STEM OPT.? After being selected in the fiscal year 2023 lottery Mr. H’s sponsor filed a petition with USCIS.? However, the petition was filed and approved for “Consular Processing.”? Unable to obtain a visa appointment, Mr. H asked the company to correct the approved petition and request that USCIS change his status from F-1 to H-1B.? This would allow Mr. H to remain in the U.S. and begin working as an H-1B worker starting on Oct. 1, 2022.

This is where the case went sideways. ?Rather than amend their approval, the company filed a new petition for Mr. H, using the same H-1B lottery selection notice, and requested that Mr. H’s status be changed from F-1 to H-1B. ?USCIS initially approved the change of status and Mr. H began working for his sponsor on Oct. 1, 2022.

Fast forward to 2023.? In July 2023, the company received a Notice of Intent to Revoke both of Mr. H’s approved H-1B petitions based on 8 C.F.R. § 214.2(h)(2)(i)(G).? This regulation states that an employer may not file in the same fiscal year more than one H-1B Cap Petition in the same fiscal year.? This rule was implemented to preclude companies from filing multiple H-1B petitions during the cap season to gain an unfair advantage in the H-1B lottery.? The regulation goes on to state, “If any of the related entities fail to demonstrate a legitimate business need to file an H-1B petition on behalf of the same alien, all petitions filed on that alien’s behalf by the related entities will be denied or revoked.”

In the present case, the business reason was clear.? There was no intent to “game” the H-1B lottery system.? The second petition was to correct an approval notice.? However, the company mistakenly checked the wrong box, and rather than amend the previous petition, they filed it as a new petition, in violation of the regulations.?

Despite the company’s response to these notices, and its explanation that the second petition was merely to correct a prior approval notice, USCIS revoked both approvals.? These revocations left Mr. H without valid status to remain in the U.S.? Not only would he need to leave the U.S., but he would have to go through the H-1B lottery again to qualify for H-1B classification.? Furthermore, these revocations could negatively impact any future immigration petitions or applications filed on Mr. H’s behalf.

I was hired in 2023 to reverse the revocation of Mr. H’s change of status though a motion to reopen and reconsider.? In my motion, I submitted additional evidence of the company’s legitimate business reasons for the second petition.? I also argued that the service’s revocation of the second approval was a misapplication of the law and contrary to congressional intent.? The intent of the regulation was to promote fair access to limited H-1B visas.? The company’s second petition was filed in good faith, sought no unfair advantage, and the company continued to have a bona fide job opportunity.

Inadvertent mistakes on USCIS petitions are common.? Unfortunately, USCIS is unforgiving and often merciless in their decisions to revoke.? The results can be devastating to foreign nationals and their families.? Fortunately, this case had a happy ending.? However, it serves as an important reminder to understand the implications when submitting H-1B lottery registrations and petitions with USCIS.? Innocent errors can have devastating consequences.? ?To avoid falling into unintended immigration pitfalls, make sure you retain counsel well-versed in the intricacies of business immigration law.

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