Wednesday 17 January 2024

The H-1B cap lottery season is around the corner and employers should begin evaluating their H-1B needs for fiscal year (FY) 2025. The H-1B visa is a nonimmigrant visa category that enables US employers to hire foreign workers with specialized skills to work in the United States. United States Citizenship and Immigration Services (USCIS) typically releases dates for the H-1B cap process by the end of January or early February, with the registration window set to open at the beginning of March.

Under the current policy, USCIS uses a lottery-based approach when the applications exceed the annual limit of 85,000 which includes 6,800 visas reserved for citizens of Chile and Singapore as part of a specific Free Trade Agreement, and 20,000 visas for those who hold a master’s degree or higher from a US institution of higher education (master’s cap). Due to this limited availability, prospective petitioners seeking to file H-1B cap-subject petitions, including for employees qualifying for the advanced degree exemption, should start planning now to electronically register and pay the associated H-1B registration fee for each foreign national employee.

In the fiscal year 2024, there was a significant increase in the number of registrations submitted compared to prior years. On 31 July 2023, USCIS reported 780,884 H-1B registrations for FY2024, an increase of 61% over the 483,927 registrations for FY2023. This spike was largely due to multiple registrations submitted for the same individuals by multiple employers. This unfairly increased the chances of selection for a beneficiary with multiple registrations. Based on the data from the FY2023 and FY2024 H-1B cap seasons, USCIS has already undertaken extensive fraud investigations, denied and revoked petitions accordingly, and continues to make law enforcement referrals for criminal prosecution.

According to USCIS, when a registration is submitted, the employer is required to sign an attestation, under penalty of perjury, that:

• all of the information contained in the registration submission is complete, true, and correct;
• the registration(s) reflect a legitimate job offer; and
• the employer, or the organization on whose behalf the registration(s) is being submitted, has not worked with or agreed to work with, another registrant, petitioner, agent, or other individual or entity to submit a registration to unfairly increase chances of selection for the beneficiary or beneficiaries in this submission.

On 20 October 2023, USCIS published a Notice of Proposed Rulemaking (NPRM) that proposes to streamline the H-1B registration selection process and eligibility requirements, improve program efficiency, provide greater benefits and flexibilities for employers and workers and strengthen integrity measures.

On 12 January 2024, USCIS also announced the launch of organizational accounts for non-cap filings and the FY2025 H-1B cap filings. The organizational accounts are meant to improve customer experience by streamlining the process. The introduction of organizational accounts will allow multiple individuals within an organization, such as a company or other business entity, and their legal representatives to collaborate on and prepare H-1B registrations and the forms associated with the petition filing. This is set to happen in February 2024, with online filing of forms available shortly thereafter.

USCIS Director, Ur M. Jaddou, emphasised, “USCIS is always striving to improve and streamline our processes, and this is a big step forward. Once we launch the organizational accounts and online filing of I-129 H-1B petitions, the entire H-1B lifecycle becomes fully electronic – from registration, if applicable, to our final decision and transmission to the Department of State.”

Moreover, USCIS will transition the paper filing location for Forms I-129 and I-907 from service centers to the USCIS lockbox, which will standardize the process and reduce costs. This digitalization of the H-1B process should significantly reduce errors and the duplication of registrations.

The controversy over multiple registrations highlighted the demand for talent in the US market as H-1B registrations with only one employer increased by 66% between FY2022 and FY2024. Whilst we are still awaiting confirmation on the outcomes of the proposed rule, it is anticipated that the recent reforms taken against the fraudulent registrations will tremendously increase the selection rate in this year’s lottery.

Planning for FY2025 H-1B lottery

Planning ahead for the H-1B registration is critical to ensuring that employers are ready to proceed when the registration window opens. We have included a sample timeline to help employers prepare.

Step 1 – Early January

Discuss your H-1B requirements with your immigration lawyer and finalize the list of applicants you wish to register. It is important to determine if an individual has been previously counted towards the cap and whether the employee and employer will both satisfy the requirements for the H-1B filing if selected.

Step 2 – Review the employees’ educational documentation. We can assist in the analysis of the required documentation and in obtaining foreign credentials evaluations (if required).

Step 3 – Early February

Determine the prevailing wage, analyze job descriptions and collate supporting documentation so that any concerns regarding wage, education or duties can be addressed.

Step 4 – March (exact dates to be released by USCIS)

Submit the H-1B registration, along with a $10 registration fee, for each applicant.

Step 5 – April 1 to June 30

If selected in the lottery, prepare, and file the Labor Condition Application (LCA) for the selected employee with the Department of Labor (DOL). Upon certification, prepare and file the petition with the USCIS.

It is important at this stage to ensure that a full assessment of the filing deadline has been made, as some applicants (such as those on OPT) may need to have their petitions filed earlier than the 30 June 2024 deadline if the employer wishes for them to remain authorized to work.

Step 6 – October 1

This is the earliest date a FY2025 H-1B employee can begin working in H-1B status.

Please contact your LDI attorney or enquiries@lauradevine.com as soon as possible if you are interested in filing an H-1B petition. For further information on other changes to US immigration law, please visit our website.