Articles

Employment Law Update: Changes to the H-1B Cap Registration Process for FY2025

Date: February 7, 2024
On February 2, 2024, the US Citizenship and Immigration Service (USCIS) issued a Final Rule relating to the FY2025 H-1B visa lottery program, set to open for registration next month. The new rule implements a “beneficiary centric” system, that will ensure that each unique beneficiary will be entered into the system only once, regardless of how many employers may submit a registration on the beneficiary’s behalf. The measure is being introduced in response to concerns about the integrity of the program and efforts by some to take advantage of the program’s employer/registrant focused system, by having multiple registrations for the same beneficiary. 
 
The H-1B visa, intended for employees in specialty occupations (i.e. those where a bachelor’s degree or higher is a minimum requirement), is a valuable tool for employers looking to recruit and retain talented employees who do not otherwise have valid U.S. work authorization. The only problem is that the total number of visas is limited to 85,000 per year, with 65,000 allocated generally, and another 20,000 available to eligible beneficiaries with a US Masters’ degree or greater. Demand for visas is fierce, particularly within tech industries. As a result, in 2007 the USCIS implemented a lottery system for allocating visas, rather than face the daunting task of receiving thousands of applications all at once under the first come, first served rule which preceded the lottery.
 
The FY2024 lottery process, which took place in Spring 2023, resulted in over 780,000 registrations. USCIS noted that, not only was this a significant increase over prior years, but that FY2024 also saw a noticeable increase in multiple registrations for the same beneficiaries. This raised serious concerns that some parties may have tried to gain an unfair advantage in the selection process. Considering those concerns, and to bring greater integrity to the program, the Final Rule implements the following changes:
 
  • Registrations will be counted based on the number of unique beneficiaries who are registered.  Selections will be made based on the unique beneficiary rather than employer specific registrations. 
     
  • Prospective employers may only submit one registration per beneficiary in any fiscal year.
 
  • Under previous H-1B lottery allocations, the employment start date for all petitions was October 1. The new regulations allow for flexibility with start dates after October 1.   
 
  • Special integrity measures will require registrations to include the beneficiary’s valid passport information or valid travel document information and prohibit a beneficiary from using more than one passport or travel document. 
 
  • If the USCIS later determines that there was a misrepresentation made in the registration, including information which is inaccurate, fraudulent or misrepresented a material fact, any H-1B petition will be denied.
 
The FY2025 H-1B cap registration period will open March 6, 2024, and will remain open through March 22, 2024. Employers who want to take advantage of this H-1B cap season are encouraged to take steps now to prepare for the registration period. Employers with questions regarding the registration process, the H-1B program, or even general immigration related questions, are encouraged to reach out for further guidance. 
The information contained here is not intended to provide legal advice or opinion and should not be acted upon without consulting an attorney. Counsel should not be selected based on advertising materials, and we recommend that you conduct further investigation when seeking legal representation.