This is the second year of USCIS’ new two-step H-1B visa application process, and USCIS discovered a major issue. Over 400 duplicate registrations were discovered in this year’s H-1B lottery. This is when multiple employers file H-1B registrations for the same beneficiary for the same position. In some cases, companies worked together to improve the chances that the beneficiary will be selected. In consequence, while in normal years 20-30% of registrations are selected in the H-1B lottery, only 7% were selected this year.
USCIS has been issuing “Collusion” RFEs in these scenarios. This was an issue in last year’s cycle, so USCIS required the inclusion of an attestation: “I further certify that this registration (or these registrations) reflects a legitimate job offer and that I, or the organization on whose behalf this registration (or these registrations) is being submitted have not worked with, or agreed to work with another registrant, petitioner, agent or other individual or entity to submit a registration to unfairly increase the chances of selection for the beneficiary or beneficiaries in this submission.”
When an employer makes this certification, if they have colluded with other organizations, they have committed perjury. This will result in the petition being rejected and possible further legal consequences. Unfortunately, it is surprisingly easy for it to appear that a petitioner has engaged in collusion even when they did not. Here are the reasons why:
- H-1B beneficiaries CAN file multiple petitions for different employers. Beneficiaries are allowed to seek out employers and employers can seek out and file petitions independently.
- Often multiple employers receive resumes from recruiting companies and choose to hire the same people.
- If an individual owns multiple companies, each company can file a petition for a single beneficiary so long as the jobs are not duplicated.
These are all perfectly legal situations that can appear to USCIS as collusion, especially in the case of the individual that owns multiple companies. This is because these companies may share office space, bank accounts, and have contracts with each other; all of these are red flags of collusion. However, USCIS does not investigate to determine whether collusion actually occurred. The burden to prove that collusion did not occur lands on the petitioner. This trick is to prove that the registration is linked to a legitimate, unique job offer.
Duplicate petitions were so widespread in this year’s cap-subject H-1B filing season that there is a high likelihood of a second lottery. That means if your registration was not selected in the first round, you may still get the opportunity to file a complete petition. Remember, all requirements must be met in the complete petition submission, which is where the anti-collusion attestation occurs. That means it is time to solidify evidence and documentation regarding the job offer and shore up documentation regarding recruitment and hiring to show that the petitioner did not collude before you file. We can help!
Before you file, visit www.ccifree.com for a free review of your case. We will respond in four hours or less.
Sheila Danzig
Sheila Danzig is the director of CCI TheDegreePeople.com. Sheila specializes in overturning RFEs and Denials for work visas.