As we approach another H-1B cap season, questions arise about the H-1B lottery and the likelihood of success under that so-called "random lottery selection" method. Also of concern are multiple H-1B filings. These questions come from individuals who are entertaining more than one job offer, and who are contemplating having more than one H-1B petition filed on their behalf in order to increase their chances - or "entries" - in the lottery. Other problems pertaining to multiple H-1B filings arise when employers file relatively high volumes of H-1B cases, in part due to the need to increase their odds of getting the number of H-1B workers they need. This information on matters of multiple H-1B filings, both from the standpoint of the employer and the individual, should be useful to many readers.

Multiple H-1B Filings by Individuals
In past years, it was permissible for a single foreign national to be the beneficiary of multiple H-1B petitions filed by different employers. It is not permissible for an employer to file multiple petitions on behalf of one foreign national. Violation of this regulation could result in rejection or denial of all H-1B petition/s.

There is nothing inherently wrong with obtaining more than one job offer, and accepting both jobs, when employment is contingent upon H-1B and approval. However, individuals engaging in this practice need to be careful about employment contracts and other agreements committing to employment. If they make multiple commitments, and end up with multiple H-1B approvals, they will not be able to meet their legal and ethical commitments to the different employers. They also should be mindful of the need generally to deal fairly with prospective employers. This is particularly true for foreign students who are starting their professional careers within specialized fields involving limited professional circles.

Individuals with multiple sponsors should also be wary of employers that seem to be too willing to sponsor. Such employers have come under scrutiny for a number of reasons, and, as explained below, may have difficulty obtaining H1B approvals.

Volume Filing by Employers Disproportionate to Current Number of Employees
Employers find themselves in a difficult situation because of the H-1B cap and lottery. They must anticipate their employment needs well in advance, and can reasonably expect that not all of their cases will be selected. Thus, many employers file far more H-1B cases than they actually require, in an effort to get enough approved to fill their employment needs.

These volume filings have created difficulties for some employers, particularly in instances where the number of filings is significantly disproportionate to the number of current employees. The USCIS often questions an employer with, for example, twenty current employees, as to why fifty H-1B cases have been filed. The employer must be able to demonstrate available employment for all of those prospective employees. While this may be appropriate in periods of expansion and growth, the employer should expect to have to explain and document the existence of bona fide positions for the sponsored foreign nationals.

The goal of filing the H-1B is to obtain an approval for a needed worker. It is permissible to file as many H-1Bs as are needed to fill the employer's needs. Employers simply need to be cautious about over-filing, as it can be counter-productive, resulting in high rates of denial.

Past Volume Filing
Employers who may have filed disproportionate numbers of H-1B petitions in past years may also be questioned. This occurs when the number of employees listed on the current H-1B petitions does not reflect the employment of those for whom petitions were filed in the past. For example, if an employer has twenty employees, and obtains approvals for fifty additional H-1B employees in FY2009, then questions could arise during the FY2010 filings if the H-1B filings do not reflect an appropriate increase in the number of employees.

There can be a number of reasons that the petitioned employees are not all working for the company, or that the overall number of employees did not increase by the number of filings. Employees may change jobs, or may have been the beneficiaries of multiple petitions and declined the employment. In these situations, it is important to have proper, thorough documentation of the termination of the employment and the withdrawal of the H-1B petitions.

Employers who have concerns in this regard should contact the Murthy Law Firm to consult with an experienced, knowledgeable attorney in advance. If petitions need to be withdrawn, then this should occur promptly. If the time for a prompt withdrawal has passed, it is better to withdraw as soon as possible, than to wait until a Request for Evidence (RFE) is issued. Failure to withdraw also generates other significant potential problems with regard to violations of the Labor Condition Application (LCA) wage requirements.