Question No. 1: May an employer file a second H-1B petition (same beneficiary, same offered position) in a subsequent fiscal year if the first petition from the prior year is still pending with USCIS?
Most of these FY2019 cases will now be resolved through the use of the recently reinstated premium processing program,iv especially those petitions yet to receive a “first touch” by USCIS.
But for FY2019 cases still unadjudicated after an RFE, or certain cases not amenable to premium processing, the issue of filing a second petition for FY2020 still requires consideration.
A strict reading of the regulation does not prohibit a petitioner from filing a new FY2020 cap-subject H-1B petition while a FY2019 petition is still pending. The regulations only prohibit repeat filings in the same fiscal year.
Although a second cap-subject filing in a different fiscal year is not barred by the wording of the regulation, practitioners may still wish to cautiously consider the government’s rationale for barring repeat petitions, and also the possibility of USCIS allowing policy considerations to alter rational regulatory interpretation.
The stated purpose for the prohibition against duplicate cap-subject H-1B petitions is to prevent beneficiaries from exploiting the system, gaining an unfair advantage, and undermining the fair and orderly administration of the cap.v Practitioners seeking to file a duplicate petition in FY2020 may need to consult with their clients to evaluate whether either the position can be modified to avoid the “same position” issue, or in the alternative, directly address the government’s policy considerations within the duplicate petition.
A practitioner should consider including with the FY2020 H-1B petition, in a cover letter, a 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). If USCIS should approve 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).
If the first FY2019 petition is still pending after responding to an RFE, the subsequent FY2020 should be considered an opportunity to “cure” any deficiency in the FY2019 petition alleged by USCIS in the RFE.
Question No. 2: If a FY2019 cap-subject H-1B was denied and is pending on appeal, can a duplicate petition be filed for the FY2020 cap?
Again, the regulatory bar on duplicate petitions only applies to multiple petitions in the same fiscal year. However, the same suggestions and cautions in the answer to the first question apply equally here.
If an FY2019 cap-subject petition petition is pending appeal and a second, FY2020, H-1B cap-subject petition is filed with USCIS, it is unlikely 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.
If filing a duplicate H-1B petition, be prepared for the unusual.
This is uncharted territory. And as always, the more complications we create in our filings, the higher the risk of adjudicatory confusion. We are not aware of any precedent for this type of situation and, therefore, we do not know how USCIS will handle duplicate filings in different fiscal years.
It is entirely possible that USCIS may hold off on adjudicating the FY2020 case until a decision is issued on the appealed FY2019 case. At least one anecdotal report from an AILA member indicates that in a similar scenario, an FY2018 case went up on appeal and an FY2019 filing was approved prior to the FY2018 case also being approved on appeal. Alternatively, USCIS may defer adjudication of the FY2020 petition pending a resolution of the FY2019 filing. Or both petitions could be approved at different times, creating conflicts in the beneficiary’s H-1B status start and end dates. These are just several of the factors a practitioner must weigh when considering filing of a FY2020 H-1B petition for the same petitioner/same beneficiary as a FY2019 H-1B petition that is either still pending or denied and on appeal.
Source: AILA Doc. No. 19021547.
