Proposed Changes by U.S. Citizenship and Immigration Services for H-1B Cap Lottery Process
On October 23, 2023, the U.S. Department of Homeland Security (“DHS”), through the U.S. Citizenship and Immigration Services (“USCIS”), published a Notice of Proposed Rulemaking in the U.S. Federal Registrar titled, “Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers.” The proposed rule, which is open for public comment through December 22, 2023, reflects the immigration agency’s proposed changes to amend the H-1B specialty occupation worker program, impacting U.S. employers sponsoring foreign nationals for highly skilled positions. The proposed changes are aimed to modernize the H-1B program. Among the enumerated changes proposed, USCIS has outlined a new methodology in the agency’s electronic registration selection process for the H-1B Cap Lottery in an effort to strengthen integrity measures of the H-1B specialty occupation worker program.
In order to reduce misuse and fraud of the electronic registration process in the H-1B cap lottery, USCIS is proposing that the randomized selection process shift to a “beneficiary centric selection,” and more specifically, from selecting by registration to selecting by unique beneficiary, whereby each unique individual who has a registration submitted on their behalf would be entered into the selection process once, regardless of the number of registrations filed on their behalf. To ensure that USCIS can accurately identify each potential beneficiary, USCIS would require the submission of valid passport information, including the passport number, country of issuance, and expiration date, in If a foreign national beneficiary’s registration is selected, each registrant that submitted a registration on the foreign national’s behalf would be notified of selection and would be eligible to file an H-1B cap-subject petition on behalf of the foreign national. In addition, USCIS proposes an extension of the existing prohibition on related entities filing multiple H-1B petitions to also prohibit related entities from submitting multiple H-1B registrations for the same foreign national. Finally, USCIS seeks to codify its authority to deny an H-1B petition or revoke an approved H-1B petition when the petition is based on an H-1B registration where the statement of facts and attestations were not true and correct, inaccurate, fraudulent, or misrepresented a material fact. While USCIS disclosed that it has already begun planning and developing the changes to the H-1B electronic registration tool for the new selection process based on unique beneficiary registrations, such provisions and proposed changes may be finalized and implemented during the FY 2025 H-1B cap season.
Proposed Pilot Program by U.S. Department of State for State-side U.S. Visa Processing
On October 17, 2023, the U.S. Department of State (“DOS”) submitted its proposed rule titled, “Pilot Program to Resume Renewal of H-1B Nonimmigrant Visas in the United States for Certain Qualified Noncitizens.” With aims of beginning in early 2024, the proposed state-side visa renewal program is expected to be limited to 20,000 H-1B principal visa applicants who are eligible to participate in the visa interview waiver program and are nationals of countries that do not require reciprocity fees. While more details regarding the proposed program will become available once the rule is published for public comment, this program will enable eligible visa applicants to renew their expiring visas without departing the United States while also reducing the workload and backlogs in consular posts worldwide.
Gunster’s Immigration Practice Group is actively monitoring these developments to provide our clients with accurate and timely guidance as additional information becomes available.
The information contained herein is based upon DHS press release published on October 20, 2023 and DOS Federal Register Notice sent to the Office of Information and Regulatory Affairs on October 17, 2023.
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This publication is for general information only. It is not legal advice, and legal counsel should be contacted before any action is taken that might be influenced by this publication.
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