By: Jason E. Burritt, Victoria Ma, Gabriel Mozes, Mia Batista, and Brooke K. Gary

Seyfarth Synopsis: U.S. Citizenship and Immigration Services (USCIS) issued a final rule on the upcoming H-1B cap registration, creating a beneficiary-centric selection process, starting this FY 2025 H-1B cap registration period, which will run from March 6, 2024 to March 22, 2024.

1. FY 2025 H-1B Cap Registration Period

USCIS announced that this year’s cap registration will open on March 6, 2024, at noon EST and close on March 22, 2024, at noon EST.  Employers should be prepared to submit critical data points associated with each H-1B registration once the registration period opens in early March, which will occur through USCIS’ newly developed online organizational account system, launching on February 28, 2024. Employers and their legal representatives can collaborate on preparing H-1B cap registrations in the new system.

2. H-1B Cap Registration Final Rule: Integrity Measures

A. Background

On October 23, 2023, the Department of Homeland Security (DHS) issued its long-anticipated Notice of Proposed Rulemaking (NPRM) on modernizing the H-1B program. One focus within this proposal aimed at improving integrity measures by addressing H-1B cap registration abuse and changing the way USCIS selects registrations to prevent employers from manipulating the registration process. As a reminder, USCIS received over 780,000 H-1B cap registrations in March 2023 (up more than 300,000 from the prior year) and more than 52% of these registrations were received from beneficiaries who had two or more registrations.  In this Notice, DHS emphasized its interest in ensuring that H-1B allocations benefit petitioners who truly intend to employ the foreign worker and not those who “game” the selection process. On January 30, 2024, USCIS announced the H-1B Registration final rule, making some of the provisions proposed in the October 2023 NPRM final.

B. H-1B Cap Registration Updates

For the FY 2025 H-1B cap registration and beyond, the selection process will be beneficiary-centric, rather than a registration-centric process. USCIS will select registrations by unique beneficiary rather than by registration. Through these changes to the registration process, USCIS aims to ensure that each beneficiary has the same chance of selection, regardless of the number of  registrations submitted on their behalf.

Registrants – meaning employer petitioners — must include the foreign national’s valid passport information or valid travel document information, and cannot use more than one passport or travel document. In addition, the document must be the same document the beneficiary intends to use to enter the United States if issued an H-1B visa. The only narrow exception to this provision is that a travel document may be used in lieu of a valid passport where a foreign national cannot obtain passport, for example stateless individuals and refugees.

Following registration, each unique beneficiary will be entered into the selection process only once, regardless of the number of many registrations submitted on their behalf. If a beneficiary is selected, each registrant – again, meaning employer petitioner — who submitted a registration on that beneficiary’s behalf will be notified and will be eligible to file a petition on that beneficiary’s behalf during the applicable petition filing period.

The H-1B petition must be supported by the same identification document provided in the registration. However, USCIS has discretion to allow changes, including but not limited to, a legal name change due to marriage, change in gender identity, or a change in passport number or expiration date due to renewal or replacement, between registration and filing of the petition.

C. Failure to Follow New Integrity Rules

Under the new system, a beneficiary may not be registered under more than one passport or travel document. If USCIS determines that multiple registrations are submitted for the same beneficiary using different identifying information, USCIS may find those registrations invalid and deny or revoke the approval of that beneficiary’s filed H-1B petition.

In addition, the Notice codifies USCIS’s authority to deny or revoke an H-1B petition where the statements in the petition, H-1B registration, labor condition application (LCA), or temporary labor certification are found to be inaccurate, fraudulent, or misrepresented, which includes the attestations on the H-1B registration, through which registrants confirm a true offer of employment.  

3. Conclusion

These changes to the cap registration process seek to prevent fraud and misuse of the H-1B cap registration system. The new final rule will both strengthen integrity and create a more equitable process for beneficiaries, while also providing a pathway for beneficiaries with multiple job offers.

Employers should act now to identify and begin preparation for the H-1B registration process for candidates or current employees who require H-1B sponsorship. In addition, employers should work with their proposed cap beneficiaries to ensure that they have valid passports or travel documents and prepare for the registration.

Seyfarth will continue to offer insights and updates to the FY 2025 H-1B cap process.  Please reach out to the authors or your Seyfarth attorney if you have any questions.