USCIS recently released a Policy Memorandum (PM-602-0159) designating Matter of S- Inc. as an adopted decision. In other words, the decision announced by the Administrative Appeals Office (AAO) in Matter of S- Inc. is now USCIS policy. So, what happened in that case?
In Matter of S- Inc., the Petitioner, a software development company, was seeking to classify the beneficiary as an H-1B nonimmigrant. However, the Director of the USCIS Vermont Service Center revoked the petition’s approval on notice, concluding the Petitioner and a “related entity,” C-LLC, impermissibly filed petitions for the same beneficiary. According to 8 C.F.R. § 214.2(h)(2)(i)(G), an employer is prohibited from filing more than one H-1B petition on behalf of the same alien. In addition, USCIS will deny or revoke the approval of all H-1B cap-subject petitions filed by “related entities” for the same beneficiary if the petitioner fails to demonstrate a legitimate business need to file multiple petitions.
The key issue in Matter of S- Inc. was whether the Petitioner and C-LLC were “related entities” for the purpose of the multiple filings bar. The Petitioner argued that “related entities” only referred to organizations that are related through corporate ownership and control, such as a parent company, subsidiary or affiliate. The AAO disagreed. The AAO determined that “related entities” includes petitioners, whether or not related through corporate ownership and control, who submit multiple petitions for the same beneficiary for substantially the same job. The AAO went on to say that whether two jobs are “substantially the same” is an issue of fact that must be decided based on the totality of the record; relevant factors include family ties, proximity of locations, leadership structure, employment history, similar work assignments, and substantially similar supporting documentation. In denying the H-1B petition in Matter of S-, Inc., the Director determined that the petitions were filed in the same fiscal year for the same beneficiary to work in the substantially same position for the same end-client through the same two vendors. The Director also observed similar, and at times identical, evidence submitted by the two petitioners.
The AAO determined that the Petitioner and C-LLC were “related entities” for the purpose of the multiple filings bar, but that alone does not necessarily justify revoking the petitions. The Petitioner still had the opportunity to demonstrate a legitimate business need to file more than one H-1B petition on behalf of the same beneficiary. In making that determination, the underlying job opportunity made by each petitioner must be examined. Each job opportunity must be bona fide, be available to the beneficiary and be materially distinct. The related petitioners are prohibited from offering essentially the same job opportunity to the beneficiary. Unfortunately, the AAO determined that the positions were not materially distinct and upheld the Director’s denial.
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