USCIS Publishes Final Rule Revamping H-1B Cap Lottery Process
The USCIS published a Final Rule today that will make far reaching changes to the H-1B cap selection process (“cap lottery”). The changes, which will go into effect this H-1B cap season, are designed to prevent beneficiaries from increasing their odds in the lottery by having multiple employers submit registrations on their behalf. Under the new ‘beneficiary-centric’ process, the USCIS will track applicants by their passport or travel document to ensure that they are only counted once. These changes were precipitated by the large number of beneficiaries with multiple registrations submitted on their behalf in previous years. Many of these submissions were perceived as fraudulent by the USCIS.
The changes brought by the Final Rule were originally proposed in a Notice of Proposed Rulemaking (“NPRM” or “Proposed Rule”) on October 25, 2023. Based on feedback from stakeholders, the Final Rule is implementing most, but not all of the proposals laid out in the NPRM. The USCIS has stated that other proposals in the NPRM which do not involve the cap lottery process will be implemented in future rulemaking.
The USCIS also announced that the FY2025 cap registration filing period will take place between Noon Eastern Time, March 6, 2024 through Noon Eastern Time, March 22, 2024. The Service further confirmed that the cap registration filing fee, which will increase after April 1, 2024, will stay at $10 for this cap filing season.
The key provisions of the cap registration Final Rule, and how these differ from the earlier Proposed Rule, are outlined below.
The new random H-1B cap selection process will be based on each unique beneficiary identified in the registration pool, rather than each registration submitted by a petitioning employer. Thus, each unique beneficiary would be entered in the selection process once, regardless of how many registrations were submitted on their behalf. If a beneficiary is selected, each employer that submitted a registration on that beneficiary’s behalf would be notified of selection and would be eligible to file a petition on that beneficiary’s behalf. The new “beneficiary-centric” selection process would ensure that all beneficiaries have the same odds of being selected in the H-1B cap lottery, regardless of the number of registrations submitted on their behalf;
Since the efficiency of the new selection process relies on the USCIS’ ability to identify each individual beneficiary, the Proposed Rule would require each beneficiary to have a valid passport to submit a cap registration. The Final Rule has modified this requirement to allow for registrations to be submitted with either a passport, or valid travel document, such as refugee travel document. If a beneficiary has neither a passport, or valid travel document, they will not be eligible for the cap lottery.
In the Proposed Rule, the USCIS proposed to bar multiple H-1B cap registrations submitted by related entities for the same beneficiary, unless the related entities established a legitimate business need for submitting multiple registrations for the same beneficiary. The Final Rule removes this requirement completely, recognizing that the requirement would not be necessary to prevent multiple registrations for the same beneficiary.
The Final Rule codifies the USCIS’ authority to deny or revoke an H-1B cap petition if the information provided in the registration, including the beneficiary information, petitioner information, and attestations, are determined to be false; and
The Final Rule also codifies its current practice permitting petitioners to request a start date of October 1 or later on the H-1B cap petitions, as long as the requested start date occurs no later than six months after the filing date of the petition.
What this means for our clients
The changes to the H-1B cap registration process that are being implemented by the Final Rule are long overdue, and should come as welcome news to H-1B employers. The changes will provide a fairer and more orderly cap registration process, and prevent beneficiaries from ‘gaming the system’ by having multiple employers submit registrations on their behalf. In so doing, the Rule should increase the odds for beneficiaries with only one registration submission, and deter beneficiaries from seeking multiple job offers solely to increase their odds in the lottery.