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H-1B Petitions for the Same Beneficiary and Considerations for the FY2020 H-1B Cap Season

The FY 2020 H-1B Cap Season has begun. It is possible that some FY2019 H-1B cap-subject petitions remain unadjudicated going into this year’s H-1B cap season.

AILA posted a practice alert regarding the potential consequences, if any, of an employer filing an FY2020 H-1B cap-subject petition while the FY2019 petition is still pending for the same worker in the same or similar position.

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?

A:       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.

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?

A.       If a FY2019 cap-subject petition is pending appeal and a second, FY2020, H-1B cap-subject petition is filed with USCIS, it is unlikely the second petition will be an exact duplicate. In practice, the second petition filed with USCIS will contain modifications and additional information making the petition less prone to suffer the same fate as the prior FY2019 petition.