The United States Citizenship and Immigration Services’ (“USCIS”) has announced the Fiscal Year 2025 H-1B Cap Initial Registration will open on March 6, 2024 at noon ET, and close on March 22, 2024 at noon ET.
In light of the large number of registrations in 2023 (over 750,000 for just 85,000 slots) this year USCIS is implementing a new H-1B Cap registration process, which will revise how the lottery registration is run, creating a more equitable system as compared to the prior year(s). As such, the United States Department of Homeland Security (“DHS”) published new regulations governing the H-1B lottery registration and selection process, which will take effect prior to the opening of the H-1B Cap Registration on March 6, 2024. The changes will implement a beneficiary-centric lottery process to level the playing field, by ensuring that each beneficiary (employee) is only entered into the lottery selection process once. DHS anticipates that these changes to the H-1B Cap Registration process “will reduce the potential for gaming the process to increase chances for selection and help ensure that each beneficiary has the same chance of being selected, regardless of how many registrations are submitted on their behalf.” [1]
The H-1B nonimmigrant visa program allows U.S. employers to temporarily employ foreign workers in “specialty occupations”, that require the theoretical and practical application of a body of highly specialized knowledge and a bachelor’s or higher degree in the specific specialty, or its equivalent. H-1B beneficiaries include Engineers, Information Technology Professionals, Accountants, and Physicians, among many others.
Through the Immigration Act of 1990, Congress set the current annual cap for the H-1B visa category at 65,000[2], which limited the number of beneficiaries who may be issued an initial H-1B visa or otherwise provided initial H-1B status each fiscal year. Congress provided an exemption from the numerical limits for 20,000 initial H-1B visas, or grants of initial H-1B status, each fiscal year for foreign nationals who have earned a master's or higher degree from a U.S. institution of higher education (“advanced degree exemption”).[3]
To manage the annual cap, USCIS historically used a random selection process in years of high demand to determine which petitions were selected toward the projected number of petitions needed to reach the annual H-1B numerical allocations. In order to better manage the selection process, DHS created a registration requirement for H-1B cap-subject petitions, which was first implemented in 2020 for the FY 2021 cap season. Under this process, prospective petitioners (also known as registrants) that seek to employ H-1B cap-subject workers must complete a registration process that requires only basic information about the prospective petitioner and each requested worker. The H-1B selection process is then run on properly submitted electronic registrations. Only those employers with valid selected registrations are eligible to file H-1B cap-subject petitions.
Under the beneficiary-centric process that USCIS will be implementing this year, registrations will be selected by unique beneficiary rather than by registration. Starting with the FY 2025 initial registration period, USCIS will require registrants to provide valid passport information or valid travel document information for each beneficiary. The passport or travel document provided must be the one the beneficiary, if or when abroad, intends to use to enter the United States if issued an H-1B visa. Each beneficiary must only be registered under one passport or travel document.
Companies who have candidates for employment or current employees that may qualify for the H-1B nonimmigrant visa program should consult with counsel on individual situations. Should you wish to receive further information concerning matters discussed in the Immigration Gunster’s Immigration Law practice.
The information herein is based upon a United States Citizenship and Immigration press release published on January 30, 2024, and by the Department of Homeland Security’s publication of the final rule in the Federal Register on February 2, 2024 For more information, please visit: https://www.uscis.gov/newsroom/news-releases/uscis-announces-strengthened-integrity-measures-for-h-1b-program and https://www.federalregister.gov/documents/2024/02/02/2024-01770/improving-the-h-1b-registration-selection-process-and-program-integrity.
[1] See USCIS News Release: USCIS Announces Strengthened Integrity Measures for H-1B Program, January 30, 2024.
[2] Up to 6,800 visas are set aside each fiscal year for the H-1B1 visa program under terms of the U.S.-Chile and U.S.-Singapore free trade agreements.
[3] Congress has also enacted other exemptions from the 65,000 numerical limitation, including exemptions for the following petitioners: institutions of higher education, nonprofit entities affiliated with an institution of higher education, nonprofit research organizations, and governmental research organizations. See 8 U.S.C. 1184(g)(5).
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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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