Comment Submitted by Sachin Nagda

I?m writing to get clarifications on few things which still remain unanswered even after publication of interim final rule. In order to ensure fair and equitable distribution of cap numbers, it?s important that no one should be allowed to game the system. There two sects of people who are currently after gaming the system and taking advantage of the loopholes in the process. First one is Employer (read - Petitioner) and other one is the Employee (read - Beneficiary). The interim rule takes care of first sect of the people and left second sect people to exploit the loopholes and using ambiguity in the rule to their advantage. There are following two things which need to be addressed and clarified from USCIS and/or DHS. First being the multiple petitions from different employers for a beneficiary. From Adjudicators guide and 8 CFRs - A beneficiary can have multiple employers filing the petition for them in pursuit of H-1B employment. A beneficiary can approach multiple employers to get as many as petitions filed in order to increase the chances of getting picked up in random selection process. He/She accepts the offer from each employer and agrees to join them on H-1B start date. All employers may not know that beneficiary is doing such a thing. The interim rule doesn?t throw any light on this scenario and doesn?t stop beneficiary to game the system using this loophole. In such cases the interim rule suggests that USCIS will request additional evidence or notice of intent to deny or notice of intent to revoke. The rule needs to be more elaborate in this regard. Second being the rule doesn?t outline the random selection process in detail. It mentions that the beneficiary is counted only once against the cap numbers. It also mentions that petitions would be numbered to facilitate the random selection process. It?s not clear whether the random selection process would run against the petitions which are numbered (refer Case 1)? Or would it run against beneficiaries as each beneficiary needs to be counted only once (refer Case 2)? If method of selection is as mentioned in Case 1 then 1. How would multiple petitions from different employers for a beneficiary handled? In other words how these multiple petitions are counted as one against cap? 2. Does a beneficiary who has multiple petitions from different employers have increased prospect to get through random selection process? (If yes then this method would give such beneficiaries an unfair advantage by having multiple entries in the random selection process.) 3. If a petition for a beneficiary gets selected (out of multiple petitions filed for a beneficiary from different employers), does that mean all other petitions get selected automatically? If the method of selection is as mentioned in Case 2 then 1. How would multiple petitions for a beneficiary from different employers be clubbed? Would it be based on Name, Date of Birth, Passport Number, and Nationality? 2. Upon a beneficiary is selected in random selection process, do all the multiple petitions for that beneficiary from different employers get processed or picked up for processing? 3. How can a beneficiary work for more than one employer full time if all the petitions for selected beneficiary (who had multiple petitions from different employers) get approved? Does beneficiary gets an opportunity to choose any one of the approved petition? I?m looking forward to immediate response and clarifications. Thank you.