Do You Have Multiple H-1Bs?
The H-1B Quota injects an externally-imposed limitation to the recruitment of skilled workers that is based not on any relevant business practice, but on luck. Last year, roughly 233,000 “initial” H-1B petitions were filed for a quota that permitted only 85,000 H-1B petitions to be approved. This was the most H-1B petitions filed in the history of the visa classification, although competition for H-1B status has been steadily increasing over the last decade. To ensure fairness in the face of a shortage, the USCIS runs an “H-1B lottery” each April, enabling it to randomly select the petitions that will be accepted for processing and to coordinate the return of those petitions not accepted. In last year’s lottery, only approximately 36% of petitions were accepted for processing. H-1B employers and beneficiaries (the human beings named in the petition as the potential H-1B worker) face significant uncertainty.
Recruitment is a complex process. The process by which skilled workers and professional roles are matched is time-consuming and expensive. In no other industry is the ability to hire candidates, or find employment, predicated on the additional hurdle of being lucky in a lottery. The resulting uncertainty for both the employee and employer has forced each party to seek out new ways to try to increase the odds in their favor.
Beneficiaries who are in the U.S. at the time of filing often hold other temporary (nonimmigrant) statuses. They either have pre-set end dates to their stays in the U.S., or their visa statuses have limited maximum validity periods. This means that these individuals must depart the U.S. at some not-so-distant time in the future. In some cases, the H-1B beneficiary already works for the employer because their current status permits also gives a temporary work authorization – which also is coming to an end. Changing to H-1B status usually is the only way that these individuals can remain working in the U.S.
For example, many of the beneficiaries of these H-1B petitions are students, seeking to change from their F-1 visa status to H-1B visa status. Depending on circumstances, most F-1 students have a year (or so) following graduation during which they are authorized to engage in career-related “optional practical training” (“OPT”). Those students whose degrees are in STEM fields are able to extend their OPT for an additional period. Most -1 students therefore have least one, and potentially three, chances at the H-1B lottery. But this year, rumors are flying that the USCIS can expect 350,000 or more H-1B petitions, reducing the odds of a given petition being accepted to about 25%. This means that F-1 students with (at most) 3 chances to participate in the lottery are facing 1:4 odds. The rejection of the H-1B petition might well mean that their lives will undergo a dramatic, unpleasant and unwanted change. 
The Employer’s Perspective
Rejection of a petition seeking to change an individual from their current, temporary visa status to H-1B status also might mean the employer will lose the worker it already has. It will have to recruit, train and onboard a new worker. The approximate cost to an employer to replace a worker (because H-1B status was not obtained) is approximately $15,000, which represents the direct costs associated with recruitment, interviewing and onboarding. Beyond this, though, many H-1B employers feel that qualified workers are very hard to find which means that the costs might well be higher. For certain work, a missing employee also means a lost opportunity to the employer, and thus there is an immediate (albeit indirect) impact on the company’s income. Finally, in certain fields (especially certain STEM fields), the majority of graduates are F-1 students, and so even if the employer attempts to recruit again for the role, the next candidate probably will be a foreign national needing – you guessed it – H-1B sponsorship.
The very low chance of petition acceptance, and the perception that there is a very high cost of rejection to both the employee and employer have combined to create a desperation among H-1B employers and beneficiaries.
The Prohibition Against Multiple H-1B Filings
Some employers were trying to shift the odds further in their favor during the FY2008 lottery (which occurred in April 2007). They tried to file multiple, duplicate filings in the hopes of increasing the odds that a single petition might be “drawn” in the lottery. The USCIS noticed, though, and objected on the basis that such actions constitute cheating. It promptly developed an Interim Final Rule (published in 2008, in time for the FY2009 lottery) that warned that “[t]o ensure a fair and orderly distribution of available H-1B visas, USCIS will deny or revoke multiple petitions filed by an employer for the same H-1B worker and will not refund the filing fees submitted with multiple or duplicative petitions.” In the rule, the USCIS advised that if duplicate petitions were found, it would deny all the petitions filed by the employer for the same H-1B worker, and if the cheating was found only after approval, USCIS would go back and revoke those petitions. Not only did the regulation prohibit a given employer from filing more than one petition for the same worker and the same job, it also prohibited related employers within a given corporate entity from coordinating the filing of multiple petitions for the same worker and same job unless the filings were justified on the basis that each petition
It is important to note that H-1B legislation did not originally prohibit a worker from being the beneficiary of multiple H-1B approvals. It is possible, even now, to be approved to work for more than one H-1B employer. Working for multiple H-1B employers is called “concurrent” H-1B employment and while not common, is recognized and permissible. The general feasibility of having concurrent H-1B employment, though, was specifically and knowingly limited by USCIS in 2008 in its 2008 Interim Final Rule, to enable it to better control the H-1B lottery process:
“USCIS recognizes that, on occasion, an employer may extend the same alien two or more job offers for distinct positions and therefore have a legitimate business need to file two or more separate H–1B petitions on behalf of the same alien. This rule precludes this practice if the alien beneficiary is subject to the numerical limitations or qualifies for the master’s degree exemption.” (emphasis added)
The bottom line is that where an individual is the named beneficiary of more than one H-1B petition during the lottery, there must be a “genuine” or “legitimate” employment relationship underlying the petition, and a “material difference” between the roles.
Virtually Identical Petitions
Beginning in FY2016 (filed in April 2015), the USCIS began taking action against petitions that it called “virtually identical”. These were filings by employers who are, on the surface, apparently unrelated, but which are acting “in concert” in a way that suggests common interests. Virtually identical petitions have identical or substantially similar descriptions of assignments, job titles, and duties. These types of filings are common in situations where the beneficiary is to serve as a consultant to a third party; the petitions appear to be coordinated filings between the actual employer, middle client and/or end client in an attempt to increase the odds that the named beneficiary will be able to perform the services for the end client. The problem is that there are no material differences in the roles from one petition to the next, and that there cannot, logically, be a genuine or legitimate employment relationship underlying each such petition.
When it identifies such “virtually identical petitions,” the USCIS issues Notices of Intent to Deny (“NOID”). To avoid denial, the petitioners must both prove that they are distinct companies without common goals, as well as convincingly explain how the multiple petitions contained so many common elements (including, in some cases, identical support documents).
Multiple Distinct Job Offers
It appears that in FY2016 another, equally creative approach to the H-1B season developed. Candidates for H-1B sponsorship have turned to accepting every offer of employment extended. This means that each employer is independently investing in the preparation and filing of H-1B petitions for prospective employees, unaware that two, three or more other employers are investing in the same employee. In this way, the perception is that the individual beneficiary has multiple (genuine) opportunities to participate in the lottery. The individuals involved feel that the lottery gives them no choice but to seek out every opportunity to obtain H-1b status, and that this is the only safe route left by which they can increase their odds of success.
But, while there likely will be material differences in the descriptions of the roles from one petition to the next, the fact that there are multiple filings suggests immediately that each petition does not represent a “genuine” or “legitimate” employment relationship. Again – the Interim Final Rule fundamentally changes the rules for H-1B filings during the lottery season, such that multiple filings for the same beneficiary are almost immediately suspect.
There is no question but that the USCIS is aware of whenever more than one lottery petition is filed for a given individual – the cap is allocated per beneficiary, and thus the tracking of H-1B beneficiaries is integral to the entire lottery process. USCIS’ computer systems are growing ever more sophisticated. Accordingly, the USCIS usually issues a Request for Evidence to the employers, notifying each that the beneficiary is also named in another petition and asking the petitioner to demonstrate that it really will employ the foreign national. Often, this RFE is when the employer first learns that its prospective employee has accepted other offers.
Individuals who want to maximize their opportunities to obtain H-1B visa status are entitled to seek out opportunities that best serve their needs – within limits. But deception is not the best way of beginning an employment relationship. Most employers will see that there is a big difference between accepting that there is a 1 in 4 chance of employment because of the lottery, and realizing that in addition, you are only 1 of 3 employers seeking to hire the individual. Most employers want to hire people who in turn want to work for them – not people who use such employment as a backup plan. Further, there is considerable time and effort that must be invested by an employer in preparing an H-1B petition (even if it has only a 1:4 chance of being read). As a result, an employer who discovers by way of a USCIS RFE that the prospective employee has other job offers might well decide to withdraw the petition rather than invest more time in that individual.
Further, bad news travels fast in a small industry: employers often have close ties with their competitors, as well as with their end clients and vendors. This is a fast way of losing your professional reputation, just when you begin your career.
And finally, USCIS itself has a longstanding distaste for those seeking to engage in unfair practices in order to increase their own odds of success, as well as an intolerance of the wasted time and resources spent adjudicating “duplicate” or “back-up” petitions. An individual who accepts three job offers and thus is the beneficiary of three H-1B petitions is really going to work for only one of those employers. The other two approvals are unnecessary.
Individuals in such situations should concern themselves more with the possible reaction of their (many) prospective employers. A demonstrated disregard for the value of the employment relationship goes both ways: even if the H-1B petition is not withdraw, an employer is more likely to terminate and replace a worker it feels is not truly loyal. And a reputation for being unreliable might make jobs, and assignments, more difficult to obtain.
Individuals might do well to also worry about the reaction of the USCIS. The knowing solicitation by beneficiaries of multiple H-1B sponsorships also goes against USCIS mandate for “the fair and orderly adjudication of petitions subject to numerical limitations” just as much as the knowing preparation by employers of duplicate H-1B petitions. To date, USCIS has not taken action against individuals who seek out multiple offers … but it might.
 “USCIS completed the H-1B Cap Random Selection Process for FY2016”, available at https://www.uscis.gov/news/alerts/uscis-completes-h-1b-cap-random-selection-process-fy-2016. Last accessed March 19, 2016.
 INA Section 214(g); 8 U.S.C. 1184(g).
 FY2016: 233,000 filings; FY2015: 172,400 filings; FY2001: 161,000 filings. See USCIS Reports and Studies (https://www.uscis.gov/tools/reports-studies/reports-and-studies).
 See, e.g. https://www.uscis.gov/working-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-fiscal-year-fy-2017-cap-season, last accessed March 19, 2016.
 For those cases involving beneficiaries who are outside the U.S. at the time the petition is filed, both the employer’s and prospective employee’s situations are not unduly changed if the H-1B petition is rejected during the lottery. The employer already has a workforce in place. Even though the new worker might be wanted, or even needed, nothing is changed by the rejection of the petition. Similarly, the prospective employee (probably) already is employed abroad. While the H-1B employment is no doubt a new an exciting opportunity, it was merely a future possibility.
 As of October 2015, there were 1.2 million international F-1 and M-1 visa status students in the U.S., of which 74% are enrolled in post-secondary degree-granting programs and of which 39%, representing roughly 460,000, are pursing educations in STEM fields. An additional 201,800 J-1 exchange visitors also currently are in the U.S. “SEVIS by the Numbers General Summary Quarterly Review,” October 2015, Student & Exchange Visitor Program (SEVP), available at https://www.ice.gov/sites/default/files/documents/Report/2015/sevis-bythenumbers-dec15.pdf, last accessed March 19, 2016.
 8 C.F.R. Section 214.2(f)(10)(ii).
 “Improving and Expanding Training Opportunities for F-1 Nonimmigrant Students With STEM Degrees and Cap-Gap Relief for All Eligible F-1 Students,” 81 FR 13039, (Mar. 11, 2016), available at the Federal Register online (https://www.federalregister.gov/articles/2016/03/11/2016-04828/improving-and-expanding-training-opportunities-for-f-1-nonimmigrant-students-with-stem-degrees-and)
 It is, of course, easy to argue that these individuals arrived in the U.S. knowing that they would have to depart. In most cases, a fundamental element to their visa application was an agreement to depart at the end of the temporary stay. Their situation nonetheless deserves sympathy. It is a basic need to know where you will be living at any time. Not knowing where you will be living in 6 months is anxiety-provoking, regardless of whether the uncertainty was foreseeable or not. It also bears noting that in this case, the situation is exacerbated by simultaneously not knowing where you will be working.
 Or a worker holding a different status that temporarily permits work authorization, such as L-1B.
 Recent studies suggest that the cost incurred by a business when it must replace a worker hovers around 20% of the salary allocated for the worker’s role. “There Are Significant Business Costs to Replacing Employees,” Heather Boushey and Sarah Jane Glynn, Center for American Progress, Nov. 16, 2012, available online at https://www.americanprogress.org/wp-content/uploads/2012/11/CostofTurnover.pdf (last accessed March 19, 2016). USCIS reports that the median salary of H-1B workers in FY2014 was $75,000. so we can assume (for the sake of argument) that the individual probably also earned about the same salary before attaining H-1B status. “Characteristics of H-1B Specialty Occupation Workers,” Fiscal Year 2014 Annual Report to Congress, Feb 26, 2015, available online at www.uscis.gov (hyperlink to https://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studies/H-1B/h-1B-characteristics-report-14.pdf) (last accessed March 19, 2016).
 It is argued that one of the reasons that the number of H-1B filings increases each year is because there is a desperate need within the U.S. economy for STEM workers and that the lack of those workers is slowing the economic recovery. See, e.g. a recent CBS article (hyperlink to http://sanfrancisco.cbslocal.com/2015/03/18/google-eric-schmidt-congress-h-1b-visa-economy-immigration-tech-workers/, last accessed March 19, 2016. It also is argued that there is no such “shortage” of STEM workers and that the current visa system lowers wages and harms the American workforce. The bottom line (probably) is that the situation is complex and there is no one, single, right answer: NSF, Revisiting the STEM Workforce: A Companion to Science and Engineering Indicators 2014, 9 (Feb. 4,
2015), available at http://www.nsf.gov/pubs/2015/nsb201510/nsb201510.pdf (last accessed March 19, 2016).
 In some situations, the work normally assigned to one worker can be temporarily assumed by the other workers within a team, and thus there is minimal “lost opportunity” cost associated with a lost employee. In most consulting industries, though, a lost employee means that the assignment also is lost. The end client will simply move to a different vendor.
 See, e.g. this US News article about MBA programs where as much as 75% of the graduating class is foreign (link to http://www.usnews.com/education/best-graduate-schools/the-short-list-grad-school/articles/2015/08/04/10-mba-programs-with-the-highest-percentage-of-international-students) or this US News article where up to 95% of certain engineering programs are foreign students (link to http://www.usnews.com/education/best-graduate-schools/the-short-list-grad-school/articles/2014/06/17/10-engineering-schools-popular-with-international-students). Both links last accessed March 19, 2016.
 The “regular” FY2008 cap was reached on April 3, 2007, with approximately 150,000 H-B petitions received. The “advanced degree” cap was reached on May 26, 2007. See “USCIS Reached FY 2008 Cap”, Apr. 3, 2007 (link to https://www.uscis.gov/sites/default/files/files/pressrelease/H1BFY08Cap040307.pdf), last accessed March 21, 2016.
 “Using the petitions received on April 2 and April 3, USCIS conducted the random selection process and thereafter rejected all petitions that were not randomly selected. When adjudicating the selected petitions, USCIS found approximately 500 instances where a single beneficiary had been named on at least two petitions filed by the same petitioner in what appears to have been an attempt to increase the chances of being selected in the random selection process.” “Petitions Filed on Behalf of H–1B Temporary Workers Subject to or Exempt From the Annual Numerical Limitation,” (hereafter referred to as the “Interim Final Rule”) USCIS, 73 Fed.Reg.15389 at p. 15391 (Mar 19, 2008).
 It also objected on the basis of the wasted time spent adjudicating duplicate petitions, and because duplicate filings might impair the USCIS’ ability to accurately allocate the quota to beneficiary as prescribed by law. Id. (‘By statute, USCIS may only allot one cap number per alien beneficiary, regardless of the number of petitions that were filed on the alien’s behalf. INA section 214(g)(7), 8 U.S.C. 1184(g)(7). … the filing of duplicate or multiple petitions may result in USCIS making available more than one receipt number to the same beneficiary, making it more difficult for USCIS to achieve an accurate projection of the number of petitions needed to generate the required number of approvals to reach the cap. In turn, USCIS may prematurely determine that the cap has been reached and either subsequently reject timely-filed petitions or close the opportunity for other prospective H–1B employers to file petitions.” Id.)
 Interim Final Rule, USCIS, 73 Fed.Reg.15389 (Mar 19, 2008).
 8 CFR 214.2(h)(2)(G).
 Id. “An employer may not file, in the same fiscal year, more than one H-1B petition on behalf of the same alien… . … filing 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. If USCIS believes that related entities (such as a parent company, subsidiary, or affiliate) may not have a legitimate business need to file more than one H-1B petition on behalf of the same alien subject to the numerical limitations …, USCIS may issue a request for additional evidence or notice of intent to deny, or notice of intent to revoke each petition.
 See, e.g.,‘‘[w]here multiple petitions are approved for 1 alien, that alien shall be counted only once.’’ INA 214(g)(7), 8 U.S.C. 1184(g)(7).
 In general, concurrent petitions either list part-time hours that collectively add up to a “typical” full-time allotment of 40 hours, or explain proactively how the beneficiary will accommodate the multiple jobs. Concurrent petitions also often include documentation from the “other” employer that confirms and coordinates the employment relationships.
 Interim Final Rule at p. 15392.
 The Interim Final Rule warned that if there were a “genuine” need by a single employer for one beneficiary to hold multiple “materially distinct” roles, the USCIS expected the employer to wait until after the lottery process ended before filing a second, amending petition. It also advised that petitions by different (but related) entities within a single corporate structure for the same beneficiary would be accepted during the lottery, but only if each had “a legitimate business need” to hire the beneficiary. Id.
 Interim Final Rule at p. 15389.