Multiple Filing of H-1B Petitions (Ⅱ)

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.