USCIS rejects 900 H-1B visa applications as ‘duplicates’, attorneys unconvinced

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After several US attorneys contacted the American Immigration Lawyers Association (AILA) stating that their applications for the H-1B visas were improperly denied, being mistaken for duplicates, the AILA brought the issue to light on March 31, stating that more than 100 H-1B applicants’ visas had been denied, and the actual number may be very large.

Under the new system developed by U.S. Citizenship and Immigration Services (USCIS), an employer and, if represented, their attorney registered a company and submitted the name of the foreign national it wished to petition for an H-1B. USCIS received approximately 275,000 such registrations and notified employers by March 31st of registrations chosen in the lottery. Those employers whose registrations were selected are allowed 90 days to send in completed H-1B applications. The lottery is necessary because the 275,000 registrations exceeded the 85,000 new H-1B petitions allowed each year under U.S. law, Forbes reported on April 2.

As of April 2nd, at least 31 immigration attorneys told the American Immigration Lawyers Association they believed 103 H-1B registrations were mistakenly rejected as duplicates. Since then, more attorneys have weighed in. As of April 9th, AILA has received, in total, reports of this issue from at least 61 immigration attorneys, involving at least 170 registrations, according to Diane Rish, associate director of government relations at AILA.

“AILA has received reports from members indicating that they have received a denial notification . . . for certain H-1B electronic registrations on the basis that the H-1B registration is a duplicate submission,” according to an AILA practice alert. “In particular, members report that the status for certain beneficiaries has been updated . . . to indicate that the status of the beneficiary is ‘denied’ . . . on the basis that a duplicate H-1B registration was submitted by the same petitioner for the same beneficiary”, the advocates said. By then, AILA had received reports from at least 31 immigration attorneys, who reported 103 H-1B registrations were mistakenly rejected as duplicates, according to Diane Rish, associate director of government relations at AILA. According to Rish, the numbers had risen to 61 immigration attorneys, involving at least 170 registrations by April 9.

Responding to the news, and on request of Forbes journalist Stuart Anderson, who writes about globalization, business, technology and immigration, a U.S. Citizenship and Immigration Services official confirmed that approximately 900 H-1B registrations were denied as duplicates, many more than the 170 registrations identified by attorneys who contacted AILA.

“Maintaining the integrity of the immigration system remains at the forefront of the USCIS mission, especially during difficult times,” according to the USCIS official. “Removing duplicate petitions is a longstanding practice, not new for this fiscal year, which preserves fairness for everyone using the H-1B program.

“We understand that the registration system is new to the public, and because of that, the agency engaged in outreach through many channels to explain how it works; what petitioners can expect from the system; and what USCIS expects from petitioners. Additionally, because this online system is new and because giving everyone a fair chance at securing the ability to submit a petition is important, we have embarked on a review of every deletion that appears to be due to duplication.

“There were nearly 275,000 registrations subjected to the random selection process. The number of duplicate denials was roughly 900. Of the nearly 40,000 registration accounts created, 346 of them were responsible for all the duplicate submissions – less than one percent of users. This data shows that the vast majority of registrants followed the instructions USCIS provided through our numerous stakeholder engagements and the comprehensive information we made widely available to the public.

“Furthermore, USCIS reviewed all registrant inquiries related to duplicate denied notices, and examined each inquiry carefully, but the agency did not find any duplicate registration invalidations due to technical issues associated with the registration system; rather they were properly identified and deleted,” the officer told Forbes.

In a response to attorneys, USCIS provided the two most common reasons a registration was invalidated. First, both an employer and its attorney each submitted a registration for the same beneficiary (i.e., the potential H-1B professional). Second, an attorney withdrew Form G-28 (a form used to show representation) but did not delete the beneficiary. According to USCIS, failing to delete the beneficiary means that when another registration was sent in for the same beneficiary USCIS considered it a duplicate and both registrations were denied as invalid. The attorneys however remained unconvinced that the reasons listed by USCIS were genuine.

“I read USCIS’s response and it’s not really a response. If their response says ‘the most common reason,’ to me that means they are not looking at the facts of each case, certainly not my case. This seems to be a generality. None of the other reasons address my client’s situation either. Now we have to respond to USCIS with other proof that none of their ‘common reasons’ apply to my specific case. I feel their response was dismissive,” said Brenda Oliver, of counsel at Fragomen told Anderson.

Some attorneys agreed there might have been some fault at their end, others however remained unclear or unconvinced if the USCIS explanation applies to their situations.

Michael P. Nowlan, co-leader of the Clark Hill law firm’s immigration business unit said, “We see no duplicates in our corporate client’s registration page or on ours. If there was a duplicate, I suspect that it could have been visible before the system closed on March 20th. But it isn’t showing up now . . . We have no visibility into this. The cases do not show up as duplicates for our corporate clients – just denials. If there was human error, then it would be nice to be able to see the trail. Right now, it looks like USCIS is dug in on the issue”

To increase chances of selection in the lottery, many companies send in multiple registrations of the same individual. But if once eliminated for ‘duplicate’ applications, USCIS seems unwilling to include the same candidates’ applications in case a second round of the lottery takes place. USCIS computer system eliminated approximately 900 registrations as duplicates, that the attorneys said seemed unlikely, demanding more transparency in the selection and lottery system.

“I doubt there were 900 submissions that were deliberately duplicates,” added Nowlan.

Dagmar Butte, a partner at Parker, Butte & Lane, said, “I think USCIS needs to do a better job, given the lessons learned, to provide full transparency between what employers and representatives see and to identify common error triggers and warn of them more effectively. Employers don’t want to game the system and they should at least have the opportunity to fix errors that are baked into the limitations of the system.

“The Department of Labor has a system that flags these kinds of things to prevent employers from inadvertently doing something that will get the case denied,” said Butte. “I think USCIS needs to fix or create warnings for when one of the events they outline is about to happen.”


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