Changes to the FY2025 H-1B Registration and Application Process

The USCIS has introduced significant changes to the H-1B visa registration and selection process for Fiscal Year 2025, for professional foreign workers seeking employment in the United States. The final rule is entitled, Improving the H-1B Registration Selection Process and Program Integrity was published on February 2, 2024, and will be effective on March 4, 2024 (89 FR 7456, February 2, 2024). This final rule is a part of the larger Notice of Proposed Rulemaking (NPRM) published in the Federal Register on October 23, 2023 entitled, Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers. As signaled in the NPRM, USCIS fast tracked review of the H-1B registration selection proposal in the NPRM so that it would be in effect for the Fiscal Year 2025 H-1B registration period (88 FR 72870, at 72872 (October 23, 2023) “After carefully considering any public comments received on the proposals in this NPRM, DHS may move to finalize the proposed provisions through one or more final rules, and may possibly do so in time for the fiscal year (FY) 2025 cap season, depending on agency resources”).

Registration Period

The registration period is set to open at noon EST on March 6^th and will close at noon EST on March 22, 2024, requiring submissions through the new USCIS online portal. A key update includes the implementation of organizational accounts on February 28, streamlining the management of registrations and petitions. The selection process will now focus on individual beneficiaries, ensuring equal chances for all, which could potentially increase fairness and reduce fraud. Despite the registration fee remaining at $10, employers will face increased H-1B filing fees starting April 1. With the H-1B cap set at 85,000 slots and demand far exceeding this number, the new system aims to improve the selection odds. Employers should promptly identify candidates for sponsorship and consult with legal experts to navigate the updated process efficiently.

USCIS Goals for Changing the H-1B Selection Process

USCIS’ FY 2023 data highlights significant progress in strategic goals: reducing backlogs by 15% with over 10 million cases processed, enhancing customer experience with new online tools, and advancing employment-based immigration by utilizing all available visas. The agency also improved naturalization processes, reducing waiting times, and strengthened humanitarian efforts by doubling refugee interviews and establishing new lawful pathways. These achievements, amid financial constraints, underline USCIS’ commitment to efficiency and humanitarian missions, with ongoing efforts to further improve processing and support for vulnerable populations.

Key Dates and Changes for the FY2025 H-1B Lottery

Organizational Accounts: Starting February 28, 2024, USCIS will introduce new organizational accounts, offering an enhanced platform for employers to manage H-1B registrations and petitions. These accounts will replace previous myUSCIS accounts, streamlining the filing process.

Selection Process Based on Beneficiaries: The FY2025 lottery has a major change with the introduction of a selection process based on beneficiaries. This new method guarantees equal selection chances for each beneficiary, regardless of how many registrations are submitted for them, supporting fairness and lowering possible fraud.

The final rule replaces the initial version of the electronic H-1B registration system, in which the agency conducted H-1B selections based on the pool of individual registrations that employers submitted for beneficiaries, with a new model based on selecting unique beneficiaries, or a “beneficiary centric” system. The new beneficiary centric system will take effect on March 4, 2024, just in time for the FY2025 H-1B cap season.

• H-1B selection process will be based on unique beneficiaries: Under the new system, the agency will run the H-1B selection process based on the beneficiary’s valid passport number, or the number of another valid travel document (see below), regardless of the number of employer H-1B registrations submitted on behalf of an individual beneficiary. Therefore, instead of running the H-1B selection within the number of submitted employer H-1B registrations, as it did under the prior system, USCIS will now run the lottery based on the number of unique beneficiaries. Where a beneficiary has multiple employers submitting registrations, each entry must be registered under the same passport or travel document number. Beneficiaries who are selected will be counted only once for purposes of the H-1B cap regardless of how many employers submitted registrations for that beneficiary. After running the H-1B selection process, USCIS will notify all of the employers who submitted registrations for the selected beneficiary that their registration for that beneficiary has been selected and they are eligible to submit an H-1B petition for the beneficiary during the 90-day filing period.
• In the final rule, USCIS states that the beneficiary-centric system was created with the goal of eliminating the “gaming” of the prior registration system by beneficiaries who increased their chances of selection by requesting multiple employers to submit H-1B registrations on their behalf. USCIS stated that the new beneficiary-centric system “will structurally limit the potential for bad actors to game the system because working with others to submit multiple registrations for the same beneficiary will not increase their chance of selection under the beneficiary centric selection process.” The agency believes that the new process will “enhance the integrity of the selection system overall,” will “enhance transparency and predictability in the selection process,” and “will increase fairness and help restore trust in the system.”

The H-1B Registration Selection Final Rule focuses on three areas:

1. Implementation of the proposed beneficiary centric selection process for H-1B registrations that is slated to begin for the FY2025 H-1B cap initial registration period at noon (EDT) on March 6, 2024;
2. Start date flexibility for certain H-1B cap-subject petitions; and
3. Implementation of additional integrity measures related to the H-1B registration process.

Fee Adjustments: The registration fee remains at $10 for this year. However, starting April 1, 2024, the H-1B filing fees will see an increase, impacting employers’ budget planning for the H-1B petition filings.

H-1B Cap and Registration Insights

The H-1B program allocates 85,000 cap numbers annually, with 65,000 under the Regular Cap and an additional 20,000 under the Master’s Cap. The demand significantly exceeds the available slots, as evidenced by the record-breaking 780,884 registrations for FY2024. The new beneficiary-centric selection process aims to level the playing field for all participants, potentially improving selection odds compared to previous years.

Preparing for the H-1B Registration

Employers should act promptly to identify potential candidates within their organization or external candidates they wish to sponsor. This includes:

• Foreign national employees currently on CPT or OPT, including those with STEM OPT.
• Employees on other nonimmigrant visas (e.g., L-1, TN) expiring before October 1, 2025.
• Potential hires currently abroad.
• Former employees you might consider rehiring.

Every employer that registered a selected beneficiary can submit an H-1B petition: Under the final rule, all employers that submitted a registration for a selected beneficiary are eligible to file an H-1B petition on behalf of the beneficiary. USCIS has declined suggestions to designate one employer that would be able to file the H-1B petition in the event of multiple employer registrations. This new system gives beneficiaries greater autonomy to choose the employer for whom they ultimately work. The agency confirms that where multiple employers properly file H-1B petitions for a beneficiary, USCIS will adjudicate each petition. Where multiple employers obtain approved H-1B petitions for a beneficiary, regardless of the order in which such H-1B petitions were filed or approved, the beneficiary may commence work under any of the approved petitions as long as they remain valid (In the supplemental information to the final rulemaking, DHS confirmed that “upon approval of a cap-subject petition, including a request for change of status, the starting validity date will be the start date reflected on Form I– 797, Notice of Action (Approval Notice), notwithstanding the date of filing, the date of adjudication, or the requested start date on the petition. … [and] that a beneficiary may commence work under any of the approved petitions as long as they remain valid and the beneficiary is in H–1B nonimmigrant status, as is the case under current practice.” 89 FR 7467).

Example: Four employers submit an H-1B lottery registration for potential worker Jane Doe. In each case, Jane Doe’s information is entered into the registration system based on her valid passport number, and counted once for purposes of the regular lottery (she does not hold a U.S. advanced degree). If Jane is selected, USCIS notifies all four employers of the selection and their eligibility to file an H-1B petitions to benefit Jane. If all four employers file H-1B petitions on her behalf during the 90-day filing period and all are approved, Jane would have the ability to choose to accept any of the four positions, regardless of the date that the employers’ H-1B petitions were filed or approved. Each approval would stand on its own and the withdrawal of one or more approvals would not impact the other approved petitions (Because there is no regulatory requirement for USCIS to notify employers that an individual had multiple registrations filed on their behalf and thus may be the beneficiary of multiple petitions, practitioners may want to advise their clients to request information from the beneficiary on this issue so they can make an informed decision on how to proceed with the filing of the company’s H-1B petition).

• Identifying Information and Passport Requirement: The final rule requires registrations to include the beneficiary’s valid passport or valid travel document information, and it is prudent for practitioners to confirm that all beneficiaries have a passport or travel document that will be valid at the time of registration. The rule also prohibits a beneficiary from being registered under more than one passport or travel document number. In most cases, the beneficiary will have a valid passport, and that document should be used for the registration process. However, the final rule allows for a valid travel document to be used as an alternative to accommodate stateless individuals, refugees, and others who are unable to obtain valid passports. The passport or travel document used for H-1B registration process must be the travel document that the beneficiary, if or when abroad, intends to use to enter the United States if issued an H-1B visa.

For all H-1B petitions filed on behalf of a beneficiary, petitioners must submit evidence of the passport or travel document used at the time of registration to identify the beneficiary. In its discretion, USCIS may find that a change in identifying information in some circumstances would be permissible. Such circumstances could include, but are not limited to, a legal name change due to marriage, a change in gender identity, or a change in passport number or expiration date due to renewal or replacement of a stolen passport in between the time of registration and the time of filing the petition. USCIS may deny or revoke an H-1B petition that does not meet these requirements.

Start Date Flexibility

• The final rule eliminated the regulatory text at 8 CFR 214.2(h)(8)(iii)(A)(4) stating that “a petitioner may submit a registration during the initial registration period only if the requested start date for the beneficiary is the first day for the applicable fiscal year.” By removing this limitation, petitioners will be eligible to request a start date after October 1, allowing for a full three-year validity period when the application is filed after April 1st. This flexibility will prevent USCIS from rejecting or administratively closing petitions which request a start date after October 1, something which occurred in the FY 2021 H-1B filing period. Petitioners should note that the requested start date still must be within six months of the date the petition is filed, within the validity period of the approved labor condition application, and can be requested only after DHS has selected that beneficiary’s registration for that fiscal year.
• The final rule did not address the situation in which the requested validity period ends before the petitioner receives the approval notice, which corresponds to the NPRM provision “Validity Expires Before Adjudication” at 8 CFR 214.2(h)(9)(ii)(D)(1). The NPRM would have allowed petitioners in this scenario to amend the petition and extend the requested validity date. stated that it is not finalizing that provision in this final rule.

USCIS Denial Grounds

The final rule codifies USCIS’ ability to deny H-1B petitions or revoke an approved H-1B petition where:

1. There is a change in the beneficiary’s identifying information from the identifying information as stated in the registration to the information as stated in the petition;
2. The underlying registration contained a false attestation or was otherwise invalid;
3. The registration fee was invalid; or
4. Where the H-1B cap-subject petition was not based on a valid registration.

The final rule also codifies USCIS’ authority to deny an H petition or revoke an approved H petition where the statements on the petition, H-1B registration, labor condition application, or temporary labor certification, as applicable, were inaccurate, fraudulent, or misrepresented a material fact, including if the attestations on the H-1B registration are determined to be false.

Conclusion

With the FY2025 H-1B cap registration season quickly approaching, there will be new challenges and opportunities for employers seeking to sponsor foreign national professionals. By understanding the significant changes, preparing adequately, and seeking expert guidance, employers can navigate the H-1B lottery process with confidence. As the registration window approaches, now is the time to review your foreign national employee roster and strategize your submissions for the upcoming lottery.

 If you or your family members have any questions about how immigration and nationality laws in the United States or Canada, please do not hesitate to contact us at The Poonah Immigration Law Firm. You can reach us by emailing info@poonahimmigrationlaw.com or by calling us at 678-978-5848.