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Here We Go Again: FY2025 H-1B Cap Season

On Behalf of | Mar 1, 2024 | Firm News, Immigration

My annual missive about the tragicomedy that is the H-1B filing season is once again upon us.  I would normally dive into this with some commentary about the H-1B program, how ridiculous it is that our clients have to endure a lottery process to see if they can hire qualified foreign specialty occupation workers, explain the H-1B process, and then offer a prayer that our Congress will finally put us all out of our misery and enact real immigration reform.  (Fat chance these days … or ever!)

Some might recall that last year the H-1B lottery registration process was rife with fraud. According to U.S. Citizenship and Immigration Services (“USCIS”), during the FY2024 registration process, there were more than 780,884 registrations filed with only 110,791 selections (for a total of 85,000 H-1B visas numbers that are ultimately available).  Of the 780,884 registrations filed, 408,891 were determined to be for individuals on whose behalf multiple employers submitted a registration, a 147% increase in multiple registrations from the prior fiscal year.

These numbers show two things: the current H-1B system does not meet the demand of employers who legitimately need qualified workers (whether foreign or not).  It also shows that the H-1B registration system was subject to abject exploitation.  USCIS finally stepped in and retooled the process.

On January 30, 2024, USCIS announced a series of changes that are intended to strengthen and improve the FY2025 H-1B registration system and cap filing season.  At its core, USCIS is implementing a “beneficiary centric” selection process for H-1B registrations.  What does this mean?  With the original version of the H-1B electronic registration system, USCIS conducted H-1B selections based on the pool of individual registrations that employers submitted for beneficiaries.  The new system, however, is based on selecting unique beneficiaries (i.e., the “beneficiary centric” system).

Under the new system, USCIS will require that each foreign national provide a prospective H-1B employer with a valid passport number (or a number from another valid travel document).  Different from prior years, this year any number of employers can submit H-1B registrations on behalf of an individual beneficiary.  And, most importantly, if the foreign national is selected, he or she can then choose, if more than one employer filed for him or her, which employer he or she will work for.

As you can see, rather than having the H-1B selection process be based on the number of submitted employer H-1B registrations, as it was under the original system, USCIS will now be running its lottery based on the number of unique “beneficiary” filings.

After the H-1B selection process is completed, USCIS will notify all of the employers who submitted registrations for a particular beneficiary that their registration for that beneficiary was selected and that they are then eligible to submit an H-1B petition for the beneficiary during the 90-day filing period (generally starting on April 1).

As noted above, in creating a “beneficiary centric” system, USCIS is (interestingly) allowing more than one employer to file an H-1B petition for a selected beneficiary.  In doing so, not only will USCIS receive additional filing fee income (that subject will be considered in a separate article about USCIS’s recent fee increases),[1] but USCIS will also adjudicate each petition and, regardless of the order in which each H-1B petition was filed or approved, the beneficiary may then choose to commence work under any of the approved petitions.  That’s quite a change (and candidly, it’s “employer-beware” in this situation)![2]

The registration period for the H-1B cap season opens at noon Eastern Standard Time (EST) on March 6th, 2024 and remains open until noon EST on March 22nd, 2024.  We’ll see how it goes.  I am cautiously optimistic.  (Famous last words.)

[1] USCIS also announced a new final rule regarding the fees for registration. For FY2026, the H-1B registration fee will rise to $215.00. Applicants submitting paperwork this year, however, can still do so for just $10.00.
[2] I can envision scenarios where multiple employers invest significant resources (i.e., time and money) in a foreign national who then ultimately decides to work for some other employer. Despite concerns expressed by stakeholders that USCIS should notify all employers who were filing registrations for a selected individual, USCIS ultimately declined, indicating that it was a matter for the employer and employee to deal with amongst themselves.