INTRODUCTION
As we approach the FY2020 new H-1B cap season there are FY2019 cap-subject petitions that still remains unadjudicated. These are some of the clarifications given by AILA on whether an employer can file a new petition under FY2020 cap, if the Beneficiary’s last year’s H-1B petition is still pending.
POINTS FOR CONSIDERATION
- What happens if an employer files a second H-1B petition for the same Beneficiary for the same offered position under FY-2020 while his previous year petition is still pending?
Most of the FY2019 cases will be adjudicated by this time through the recently reinstated premium processing program. But for FY2019 cases still unadjudicated after an RFE, or certain cases not amenable to premium processing, the issue of filing a second petition under FY2020 still requires consideration. AILA clarifies the following points on this subject:
a) The regulation does not prohibit filing a new petition for FY2020 while a previous year petition is still pending. The regulation only prohibits repeat filings in the same fiscal year;
b) Although a second cap-subject filing petition is not barred by the regulation, practitioners may still wish to vigilantly consider the government’s rationale for barring repeat petitions even though in different fiscal years;
c) In case an employer wants to file a second petition then the practitioner should consider including with the FY2020 H-1B petition, a cover letter, with brief explanation of the circumstances, highlighting the existence of the unadjudicated FY2019 petition and noting that the two petitions are for two different fiscal years, negating the prohibitions set forth at 8 CFR §214.2(h)(2)(i)G)1;
d) If USCIS approves the FY2019 H-1B petition before reaching the FY2020 petition, the petitioner may wish to consider withdrawing the FY2020 petition as no longer necessary (assuming the FY2020 petition is selected in the lottery);
e) If the first FY2019 petition is still pending before USCIS even after responding to the RFE then the subsequent FY2020 petition should be considered as an opportunity to “cure” any deficiency in the FY2019 petition alleged by USCIS in the RFE.
- What happens if a FY2019 cap-subject petition was denied and is pending on appeal, can a duplicate petition be filed for the FY2020 cap?
As already explained above regulatory bar on duplicate petitions applies only to multiple petitions for the same Beneficiary in the same fiscal year. However, the same suggestions and cautions answered in the above question all applies here. Also please note that:
a) If an FY2019 cap-subject petition is pending appeal and a second FY2020, H-1B cap-subject petition is filed with USCIS, it is unlikely that the second petition would be an exact duplicate. In practice, the second petition filed with USCIS would contain modifications and additional information making the petition less prone to suffer the same fate as the prior FY2019 petition.
CONCLUSION
Thus, when filing for a second petition in any of the above cases, be prepared for the unusual. As always when we create more complications in our filings, there are higher risk of adjudicatory confusions. So, when filing a second petition it helps to include a bright colored cover sheet (at GLF we use a bright pink cover) and help USCIS understand why you are going for the second filing.
SIGN UP FOR GLF NEWSLETTER
At GLF will continue to follow further developments in this matter and we will provide updates through our Newsletter as and when they become available.
GLF receives numerous emails and phone calls every day asking for comment on various proposed bills and media reports that are often inaccurate. It is our job to separate fact from fiction and advice clients on important updates that are relevant. The best way to receive accurate information is through GLF Newsletters. We encourage you (and your employees) to sign up for GLF Newsletter. If you are not already signed up to receive our Newsletters, please do so by visiting www.gokarelaw.com and signing up under the Newsletter Tab. All we need is your name and email address and it takes very little time to sign up. You can also review all of our earlier GLF Newsletters on our website.
1 8 CFR §214.2(h)(2)(i)(G) states: “An employer may not file, in the same fiscal year, more than one H-1B petition on behalf of the same alien if the alien is subject to the numerical limitations of section 214(g)(1)(A) . . .. [F]iling more than one H-1B petition by an employer on behalf of the same alien in the same fiscal year will result in the denial or revocation of all such petitions.” (emphasis added).