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Employers Prohibited From Filing Multiple H-1B Visa Petitions For Same Worker

If you're caught violating the new federal rule, the government will throw out your duplicate petitions, withhold the visas, and keep your money.
If you're considering stuffing the H-1B visa ballot box with duplicate applications for the same job candidate to improve your odds that U.S. Citizenship and Immigration Services will pick your visa petition in the random H-1B lottery next month, forget about it.

A new interim USCIS rule that was published today in the Federal Register and takes effect immediately prohibits employers from filing multiple H-1B petitions for the same worker.

If you're caught violating the rule, USCIS will throw out your duplicate petitions, withhold the visas, and keep your money.

"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," says the rule.

However, the rule does have a loophole for some employers. It doesn't preclude "related employers (such as a parent company and its subsidiary) from filing petitions on behalf of the same alien for different positions, based on a legitimate business need," said USCIS.

USCIS says the new rule is "to ensure a fair and orderly distribution of available H-1B visas." It's meant to level the playing field for all employers seeking to hire foreign workers, such as technology professionals. On April 1, USCIS begins accepting from employers H-1B visa petitions for foreign workers that companies are seeking to hire in fiscal 2009, which begins on Oct. 1.

Last April, USCIS received about 133,000 H-1B visa petitions in two days, more than double the 65,000 H-1B visas limit that Congress allows to be issued annually. The U.S. also can annually issue 20,000 additional H-1B visas to foreign students who receive advanced degrees from U.S. schools. USCIS received enough petitions by last April 30 to reach the cap on those 20,000 exemptions for fiscal 2008.

Last April, USCIS confirmed "500 incidents" where employers filed multiple H-1B visa petitions for a single worker, says a USCIS spokesman.

Technology companies have been lobbying Congress to raise the H-1B visa cap so that employers can hire foreign talent for hard-to-fill jobs requiring specialized talent. However, opponents to the current H-1B visa program complain that many of the visas being granted annually are being issued to Indian-based companies looking to fill temporary job positions for U.S. clients with cheap labor.

In testimony before the U.S. House of Representative committee on science and technology last week, Microsoft chairman Bill Gates said "Microsoft was unable to obtain H-1B visas for one-third of the highly qualified foreign-born job candidates that we wanted to hire."

Meanwhile, American IT professional advocacy group Programmers Guild today is faxing a letter to USCIS urging the agency to dump its lottery method of issuing H-1B visas and instead evaluate applications based on the skills of visa candidates and give first preference to U.S. based employers seeking visas.

"H-1b workers with the highest skills should be given priority," said Kim Berry, president of Programmer Guild in a statement.

"In no case should a PhD genetic researcher lose out to a $16 [an] hour accountant," said Berry. "The best proxy for skill is salary. If H-1b were granted with a preference for salary, every $100,000 H-1B [petition] that Bill Gates filed would get approved," said Berry.

"The Programmers Guild agrees with Bill Gates that the H-1b lottery does not serve U.S. national interests. The guild advocates that priority be given to higher skilled H-1b candidates, and that U.S. employers be given preference over foreign consulting firms," he said.

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