February 21, 2024

USCIS Approves New H-1B Visa Lottery Selection Process

On January 30, 2024, USCIS issued a press release that included several announcements or upcoming changes regarding the H-1B Visa Program, including:

  • Finalization of the Rule on the new H-1B Visa Lottery Registration and Selection Process (see below).
  • The FY 2025 H-1B Cap Season Initial Registration Period will run from noon March 6 to noon March 22, 2024.
  • Finalization of the Fee Schedule Final Rule, noting that the fee for the initial registration period for the FY 2025 cap season remains at $10.
  • New Organizational Accounts for H-1B Visa Registration, Petition, and Form I-907 Filings go live on February 28, 2024.
  • New Online Form I-129 and Form I-907 for non-cap H-1B visa petitions will go live on February 28, 2024.
  • On April 1, 2024, “USCIS will begin accepting online filings for H-1B cap petitions and associated Forms I-907 for petitioners whose registrations have been selected.”
New H-1B Visa Lottery Selection Process

Just in time for the FY 2025 H-1B Visa Cap-Season lottery, the Department of Homeland Security, on February 2, 2024, published the Final Rule, “Improving the H-1B Registration Selection Process and Program Integrity.” The Final Rule, which goes into effect on March 4, 2024, incorporates stakeholders’ urgent recommendations to change the H-1B visa registration lottery to select unique beneficiaries over registrations; the previous system allowed the beneficiary and registrant companies to game the system.

The proposed changes were included in the comprehensive proposed rule, “Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers.” At the urging of many commenters, including TechServe Alliance, USCIS finalized the lottery registration changes in this separate Rule. Another Rule on other proposed H-1B Visa program changes is expected later this year.

TechServe Alliance’s December 22, 2023, comments supported the fast-tracked changes to the lottery registration system and selection process. However, TechServe joined other groups, including the American Immigration Lawyers Association (AILA) and the Corporate Immigration Partners law firm, expressing concern about the potential unintended consequences of multiple registrants filing petitions for the same selected beneficiary. CEO Mark Roberts said,

“. . . [T]the Proposed Rule does not require notification to registrants they are one of many potential employers. Multiple petitions filed on behalf of the same beneficiary could result in significant confusion, increased workloads for USCIS in processing the petitions, and increased costs for registrants who file petitions but do not employ the beneficiary. In addition, immigration lawyers warn of potential legal consequences for the beneficiary’s immigration status when multiple petitions are approved.”

In the Final Rule, USCIS puts the burden on sponsoring employers, which they say file both the registration and the petition, in declining to make any changes,

“DHS has no role in deciding which registrants ultimately choose to file a petition based on their selected beneficiary. It is expected that registrants will communicate with the selected beneficiary to make informed decisions regarding whether to file an H–1B petition.”

In one of the few changes to the Proposed Rule, DHS modified the identification requirements, beyond a valid passport. DHS noted public comments that expressed concern for stateless individuals, refugees, and others unable to obtain passports. The new registration requirement allows beneficiaries to provide other valid travel document information, which aligns with the Form I-129.

For more information:

The National Law Review, “USCIS Announces H-1B Cap Initial Registration Final Rule for Fiscal Year 2025,” February 8, 2024

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