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March 5, 2024

FY 2025 H-1B CAP REGISTRATION, BENEFICIARY-CENTRIC SELECTION PROCESS, NEW ORGANIZATIONAL ACCOUNTS AND H-1B REGISTRATION PROCESS INTEGRITY MEASURES

The initial H-1B cap registration period for the FY 2025 will open at noon Eastern on Wednesday, March 6, 2024, and run through noon Eastern Friday, March 22, 2024. During this period, prospective petitioners and their representatives, if applicable, must use a  United States Citizenship and Immigration Services (USCIS) online account to register each beneficiary electronically for the selection process and pay the associated registration fee for each beneficiary.   

The H-1B nonimmigrant visa program allows U.S. employers to temporarily employ foreign workers in specialty occupations, defined by statute as 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. Congress set the current annual cap for the H-1B visa category at 65,000[1], 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’’).

To manage the annual cap, USCIS has 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, the Department of Homeland Security (DHS)  created a registration requirement for H-1B cap-subject petitions, which was first implemented in 2020 for the FY 2021 cap season.

During the course of the past few years, USCIS saw an increase in the number of beneficiaries with multiple registrations submitted on their behalf, as well as an increase in the number and percentage of registrations submitted for beneficiaries with multiple registrations.

Ending rampant abuse of the H-1B registration system and moving from a flawed model to a fairer system, the DHS announced in January 2024 a final rule implementing the anticipated “Beneficiary Centric” selection process for H-1B registrations for FY2025. This final rule is effective March 4, 2024.

WHAT IS BENEFICIARY-CENTRIC SELECTION PROCESS?

If USCIS receives enough electronic registrations and determines that a random selection process should be conducted, selection would be based on each unique beneficiary identified in the registration pool, rather than each registration.

Each unique beneficiary would be entered in the selection process once by using a valid passport or travel document information, regardless of how many registrations were submitted on their behalf. By selecting a unique beneficiary, each individual will have the same chance of being selected, regardless of how many registrations were submitted on their behalf.

If a beneficiary is selected, each employer that submitted a registration on that beneficiary’s behalf would be notified of selection and would be eligible to file a petition on that beneficiary’s behalf. Changing how USCIS conducts the selection process to select by unique beneficiaries instead of registrations would significantly reduce or eliminate the advantage of submitting multiple registrations for the same beneficiary solely to increase the chances of selection and should give all beneficiaries an equal chance at selection.

Beneficiary-Centric Selection Process could also result in other benefits, such as giving beneficiaries greater autonomy regarding their H-1B employment and improving the chances of selection for legitimate registrations.

ORGANIZATIONAL ACCOUNTS  REQUIRED FOR PARTICIPATING IN THE BENEFICIARY-CENTRIC SELECTION PROCESS

On February 28, 2024, USCIS launched the new organizational accounts in the USCIS online account that will allow multiple people within an organization and their legal representatives to collaborate on and prepare H-1B registrations, H-1B petitions, and any associated Form I-907.

Organizational accounts will replace registrant accounts and will be required during the registration period. Accounts may begin to be created, or updated as appropriate, but must wait until March 6, 2024, to enter beneficiary information.

Before setting up the new organizational account, the prospective petitioning company needs to decide who will be the Administrator responsible for setting up the Company Group. A company can have more than one Administrator in a Company Group but needs to first decide which Administrator will set up the Company Group.

If the Administrator chosen by the company for setting up the Company Group has an existing H-1B registrant account, s/he will not need to create a new account to use the organizational account features. However, note that the Administrator chosen by the company for setting up the Company Group needs to login first before any other Administrator(s)/Members within the company.

After the Administrator chosen by the company for setting up the Company Group logs in, s/he will “Create a Company Group” from the options and upgrade the company’s H-1B registrant account to use the organizational account features.

The Administrator is the person who will oversee a Company Group and collaborate with legal representatives. This person should be someone who has the authority to sign, pay for, and submit registrations and petitions on behalf of the company.

If a legal representative will be working on behalf of the organization, decide if they or an Administrator chosen by the company will initiate the Company Group. The result is the same—a Company Group will be created—but deciding in advance who sets up the Company Group will help avoid time-consuming mistakes.

The Administrator of a Company Group can invite other people to the group. There are a few things to consider: (1) When you invite someone to your group, you need to assign them a role- Administrator or Member; (2) A Company Group can have as few or as many Administrators and Members, but each person can only be in one Company Group at a time; (3) Each person is invited using the unique email address associated with their online account; (4) Invitations expire in 7 calendar days.

H-1B CAP REGISTRATION PERIOD FOR FY 2025

The initial H-1B cap registration period for the FY 2025 will open at noon Eastern on Wednesday, March 6, 2024, and run through noon Eastern Friday, March 22, 2024. During this period, prospective petitioners and their representatives, if applicable, must use a USCIS online account to register each beneficiary electronically for the selection process and pay the associated registration fee for each beneficiary.

USCIS will require registrants to provide valid passport or 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.

H-1B CAP REGISTRATION FEE FOR FY 2025

The H-1B cap registration fee per registration for FY 2025 is $10.00. It is important to remember that the $10 fee for each registration is nonrefundable and must be paid online through the pay.gov portal. This registration fee is separate from any other fees that might need to be paid later if the registration is selected in the H-1B visa lottery. If there is an attorney involved in this process, the prospective petitioner needs to make sure to coordinate with them about how this payment will be made.

The registration system will notify registrants that payment has been initially processed. The registration system will also show the status of the registration as ‘‘Invalidated- Failed Payment’’ once USCIS identifies that the payment has failed, and USCIS will send registrants an email or SMS text to log into their account and check for updates. Additionally, payees can proactively confirm the status of a payment by contacting their bank, credit card company, or payment service, and confirm payment generally by the next business day, if not before.

Note that H-1B cap registration fee will increase beginning March 2026 to $215 per registration.

INTEGRITY MEASURES RELATED TO THE H-1B CAP REGISTRATION PROCESS

DHS has implemented integrity measures related to the H-1B registration process, including requiring registrations to include the beneficiary’s valid passport information or valid travel document information, and prohibiting a beneficiary from being registered under more than one passport or travel document.

DHS also codified USCIS’ ability to deny H-1B petitions or revoke an approved H-1B petition where:

  • The beneficiary’s identifying information in the petition has changed from the registration.
  • Underlying registration contains a false attestation or was otherwise invalid (potential H-1B employers attest that there is a legitimate job offer and they are not working with others to improve the chance of selection).
  • The registration fee is invalid (meaning the agency could not collect the fee)
  • The H-1B cap-subject petition is not based on a valid registration

Further, DHS codified USCIS’ authority to deny an H petition where the statements on the petition, H-1B registration, labor condition application (LCA), were inaccurate, fraudulent, or misrepresented a material fact, including if the attestations on the H-1B registration are determined to be false.

CONCLUSION

USCIS’ efforts in addressing H-1B cap registration abuse by introducing the Beneficiary-Centric Selection Process and implementing integrity measures related to the H-1B registration process are a welcome improvement.

USCIS efforts in timely creating a level playing field for H-1B beneficiaries and to stop the rampant abuse of the H-1B registration process must be applauded. The next few weeks will determine whether or not the newly implemented measures worked as anticipated, including  during the newly launched organizational accounts for submitting H-1B cap registrations and H-1B petitions.

[1] Up to 6,800 visas are set aside from the 65,000 each fiscal year for the H–1B1 visa program under terms of the legislation implementing the U.S.-Chile and U.S.-Singapore free trade agreements.

 

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