H-1B Changes Ahead

On Behalf of | Feb 21, 2024 | Immigration Law

USCIS recently announced several notable changes that will impact both the H-1B registration selection process, as well as H-1B petitions, generally. The final rule from the Department of Homeland Security (DHS) will go into effect on March 4, 2024. The change will be omplemented in time for the fiscal year 2025 H-1B cap season. This year’s H-1B registration will run from March 6 -March 22, 2024.

The DHS final rule was developed for three primary purposes:

  1. To implement a beneficiary-centric selection process for H-1B registrations;
  2. To provide start date flexibility for certain H-1B cap subject-subject petitions; and
  3. To implement enhanced integrity measures related to the registration process.

The Beneficiary-Centric Selection Process

USCIS first created a registration requirement for H-1B cap-subject petitions in 2020 to better manage the selection process. Under this system, prospective petitioners (or employers) have indicated their intent to file an H-1B petition by submitting basic information about the company and each requested worker. Upon the close of the registration period, USCIS has then conducted a registration selection lottery. Only selected petitioners with valid registration may file an H-1B cap-subject petition. The 2020 regulations did not limit the number of registrations submitted by different registrants on behalf of one individual. Registrations skyrocketed from 274,237 in FY 2021 to 780,884 in FY 2024. Such a monumental increase has led USCIS to the conclusion that the system is being misused with fraudulent and/or duplicative registrations.

To remedy this concern, DHS recently announced the implementation of a beneficiary-centric selection process. Starting with the FY 2025 lottery in March 2024, USCIS will select registrations by unique beneficiary instead of by employer registration. Each beneficiary will have only one chance to be selected, regardless of how many employers submit a registration for them.USCIS will conduct the lottery, then, by beneficiary rather than by employer. Once a beneficiary is selected, each registrant employer associated with that beneficiary will be eligible to file a petition.

Start Date Flexibility

The recently announced changes to the selection process also amend a previously “confusing regulatory provision” regarding the start date that must be listed on H-1B petitions. The previous regulation indicated that a petitioner may submit a registration, during the initial registration period, only if the requested start date of the beneficiary was October 1 of the applicable fiscal year. On a practical basis, USCIS has already been accepting H-1B petitions with start dates after October 1 of a fiscal year, so long as the start date is within the same fiscal year as the H-1B registration and within six months of the petition filing date. Therefore, this “change” in the recently announced final rule essentially codifies current practice to allow greater start date flexibility for certain H-1B cap subject-subject petitions.

Enhanced Integrity Measures

Lastly, the new rule enhances USCIS’s ability to identify each individual beneficiary and as the registrations submitted on their behalf. All upcoming registrations must include the beneficiary’s valid passport or travel document information. Moreover, beneficiaries may not register under more than one passport or travel document.

The final rule additionally codifies USCIS’s ability to deny or revoke H-1B petitions where:

  1. The underlying registration contained a false attestation or inconsistent identifying information; or
  2. The registration fee was declined or is otherwise invalid after submission.

Ultimately, the final rule was designed to promote fairness and bolster the integrity of the H-1B Registration Selection Process.

New Organizational Accounts for Registration

In addition, USCIS will be launching “organizational accounts” in time for fiscal year 2025. Organizational accounts allow multiple individuals within an organization to collaborate with their legal representatives in preparing H-1B registrations and associated documents. Employers may create these accounts starting on February 28, 2024. USCIS reports that with employers existing registrant accounts will be able to upgrade to the new organizational account system.

Lastly, USCIS will also roll out online filing of Form I-129 and associated Form I-907 for non-cap H-1B petitions as well as for cap-subject selected petitions.

Fee changes

Alongside the many changes to the H-1B registration selection process, USCIS is also increasing most of its filing fees. Premium processing fees for H-1B petitions will go up to $2,805 on February 26, 2024. Additional fee changes will go into effect on April 1.

Effective April 1, 2024

  •  Form I-129 petition fee will increase from $460 to $780 for most employers.
    •  Small employers (25 or fewer full-time equivalent employees) and nonprofits are not subject to that increase.
  • An Asylum Program Fee will be implemented for Form I-129, Petition for a Nonimmigrant Worker, and I-140, Immigrant Petition for Alien Workers.
    •  Small employers will pay a $300 fee, and nonprofit employers are exempt from the fee. All other employers will pay $600.
  •  The ACWIA (American Competitiveness and Workforce Improvement Act) and Fraud Prevention fees will remain unchanged at $1500 ($750 for small employers) and $500 (for all initial petitions by a petitioner for that beneficiary).
  • The H-1B cap registration fee is also increasing from $10 to $215,
    • Will take effect the fiscal year 2026 cap season.

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