United States Citizenship and Immigration Services (USCIS) announced in a final rule published last Friday that the registration period for the 2025 fiscal year H-1B cap will open at noon Eastern time on Wednesday, March 6, 2024, and will close at noon Eastern time on Friday, March 22, 2024. During this registration period, employers/petitioners that wish to file H-1B petitions to employ foreign nationals in H-1B status during the 2025 fiscal year, which begins on October 1, 2024, may file online registrations for these employees through the myUSCIS portal. After the registration period closes, the USCIS will hold two random selections, or lotteries, and will select a certain number among those filed in order to meet the regular H-1B Cap (65,000) and the U.S. Advanced Degree Cap (additional 20,000). The petitioners whose registered beneficiaries were selected in the lottery may then file H-1B petitions with the USCIS within a filing window of at least 90 days. The USCIS will notify petitioners whose registrations were selected no later than March 31, 2024.
The H-1B cap registration process was introduced in 2019 to address the fact that the demand for new H-1B petition approvals every year significantly exceeds the annual numerical limitations or quotas on these petitions, and, in particular, to relieve employers who wish to employ foreign nationals in H-1B status of the burden of having to prepare and file full H-1B petitions that may not have an H-1B number available under the quotas. The H-1B quotas are a general quota of 65,000 (from which 6,800 must be deducted per Free Trade agreements with Chile and Singapore, leaving a total of 58,200) and a set-aside quota of 20,000 for persons with advanced degrees from accredited and not for profit United States universities.
The following are answers to some of the questions most commonly posed about the H-1B cap registration and selection processes.
What Does a Prospective H-1B Petitioner Need to do to File an H-1B Cap Registration?
An employer that wishes to file an H-1B petition for a foreign national employee/beneficiary that is subject to the annual H-1B numerical limitation or cap must establish a myUSCIS online account and file an electronic registration application as a “Registrant” through this portal for each person for whom it seeks to file an H-1B petition (multiple applications for different employees/beneficiaries may be filed from a single account). There is no mechanism for a paper or hard copy registration application filing. Only one application per employee/beneficiary may be filed by a petitioner/employer. Each registration application must contain the following information:
Petitioner/Employer Information
- Legal name of the petitioner/employer
- The Doing Business As (DBA) name of the petitioner/employer, if applicable
- Employer identification number (EIN) of the petitioner/employer
- Primary U.S. office address of the petitioner/employer
- Legal name, title, and contact information (daytime phone number and email address) of the authorized signatory of the petitioner/employer
Employee/Beneficiary Information
- Employee’s full legal name
- Employee’s gender
- Whether or not the employee/beneficiary has a Master’s or higher degree from a U.S. institution of higher education
- Employee’s date of birth
- Employee’s country of birth
- Employee’s country of citizenship
- Employee’s passport or travel document number
The authorized signatory of the petitioner/employer will be required to certify that all the information contained in the registration application is accurate and that the petitioner/employer intends to file an H-1B petition on behalf of the employee named in the registration if the application is selected. A $10 fee payable to USCIS must be paid with each registration application. This fee may be paid by credit card and is not refundable.
Although the USCIS plans to increase the $10 fee to $215, as it announced in a Fee Schedule final rule, the rule implementing this increase will not go into effect until after the initial registration period for the FY2025 H-1B cap. The registration fee for the FY2025 registration process starting in March 2024 will thus remain $10. Please note, however, that the increased H-1B petition filing fee of $780 will be effective on April 1, 2024, and must be paid with all FY2025 cap-subject H-1B petitions. The new “Asylum Program Fee” of $600 must also be paid. Both fees are reduced for smaller and non-profit petitioners, as reported in our Alert USCIS Issues Final Rule Increasing the Filing Fees for Most Applications and Petitions on this subject.
Detailed instructions on the H-1B cap registration process are available on the USCIS website’s H-1B Cap Season page.
What is the New “Beneficiary-Centric” Process?
This year, the USCIS will introduce a new “beneficiary-centric” system for the H-1B cap registration process. Under this system, registrations will be selected by a unique beneficiary identifier rather than by a unique registration. In other words, no matter how many sponsoring employers register a particular individual for H-1B employment, that individual will only be entered into the lottery once. This system is designed to reduce the potential for fraud and ensure that each foreign worker has an equal chance of selection without regard to the number of registrations submitted on their behalf by multiple employers.
The beneficiary-centric system is a response to the dramatic increase in the number of registrations filed by different entities for the same beneficiary (an increase of 243,711) that occurred last year, and which caused significant concern on the part of USCIS. The agency noted in its post-registration announcement last year that “the large number of eligible registrations for beneficiaries with multiple eligible registrations – much larger than in previous years – has raised serious concerns that some may have tried to gain an unfair advantage by working together to submit multiple registrations on behalf of the same beneficiary. This may have unfairly increased their chances of selection.”
USCIS will require petitioning employers to provide valid passport information (or valid travel document information for stateless individuals) for each individual registered in the H-1B Cap lottery. The passport or travel document provided must be the one the beneficiary intends to use when entering the United States in H-1B status. Each beneficiary should only be registered under one unique passport or travel document.
Once a beneficiary is selected, every employer who properly and validly registered him or her for the H-1B lottery will be notified and will be eligible to file an H-1B petition for that individual.
What Are the New Organizational Accounts?
By February 28, 2024, USCIS will launch its enhanced platform designed to improve online collaboration for petitioning companies and their legal representatives. The new platform includes the previously announced “Organizational Accounts” that will permit multiple persons within an organization, as well as their legal representatives, to prepare and electronically submit H-1B registrations and H-1B petitions. Employers participating in the FY2025 H-1B Cap Lottery this year will be required to create a Company Group using the new Organizational Accounts. T&S will be communicating with all clients during the next several weeks to coordinate the creation of Company Groups.
Starting at noon Eastern Time on February 28, 2024, USCIS will allow (for the first time) the online filing of Form I-129 for H-1B petitions not subject to the cap. Online filing of H-1B cap petitions by petitioners whose registrations have been selected will be allowed starting on April 1, 2024. Petitioners with successful registrations may file a hard copy Form I-129 H-1B petition instead of an online filing, but will not be able to link hard copy-filed Forms I-129 to their online accounts.
At this point, it is not clear if there will be an overall advantage gained by the online filing of Form I-129. The technological difficulties that have historically been experienced by the USCIS when introducing initiatives of this type suggest that caution should be exercised.
What Happens After the Registration Period Closes on March 22?
Once the registration period closes, the USCIS will calculate how many registration applications it has received. If the agency has received fewer applications than the statutory numerical limitations or quotas, all applications will be selected. If, as is far more likely, the USCIS determines that it has received more applications than the statutory numerical limitations or quotas, the agency will conduct a random selection process for all the applications received. The selection process will consist of two steps. First, an initial random selection or lottery will be held to determine the allocation of the 58,200 numbers available under the general H-1B cap. Once this is concluded, a second lottery will be held to determine the allocation of the 20,000 numbers available to persons who hold advanced degrees from accredited and not for profit United States universities. Only registration applications that indicate that the employee/beneficiary holds such a degree will be included in this second lottery.
The USCIS will notify all petitioners/employers of the selection of their registered beneficiaries by sending an e-mail message indicating that the myUSCIS account has been updated. If the account is updated to show “Selected”, the registration was selected and an H-1B petition may be filed during the specified filing window. An account may also be updated to show “Denied” (typically because multiple registrations were received from the petitioner/employer for the same beneficiary/employee) and “Invalidated/Failed Payment” if the payment was declined or otherwise failed.
USCIS has also clarified its requirements concerning the requested employment start date on cap-subject H-1B petitions. Such petitions may now request start dates that are after October 1, 2024, provided that the start date is not more than six months after the date on which the H-1B petition is filed.
A petitioner/employer whose registration is selected in a lottery but subsequently does not file an H-1B petition will not be penalized, as there is no way of communicating the fact that a petition will not be filed. The USCIS has recommended in the past that documentation concerning the decision not to file be maintained.
Will there be a New I-129 H-1B Petition Form and Will Premium Processing be Available?
A new edition of Form I-129 (edition date 04/01/24) must be used for H-1B petition filings based on successful H-1B cap registrations. This new form will soon be available to preview on uscis.gov.
Petitioners filing FY2025 cap-subject H-1B petitions should note that the increased filing fees taking effect on April 1, 2024, will result total filing fees of $3,380 ($780 base fee, $600 Asylum Fee, $1,500 ACWIA Fee, $500 Fraud Fee). Premium Processing is available for those seeking expedited adjudication; the fee will be $2,805 and will guarantee action on the petition within 15 business days.
What is the Likelihood of Success in the H-1B Cap Lotteries?
Given the introduction of the new beneficiary-centric selection system, it is unlikely that the huge volume of registrations seen last year will be repeated. Before last year, the percentage of registrations selected annually in the H-1B cap lotteries was approximately 30%; it is possible that, after last year’s aberration, this percentage will once again apply this year. What is certain, however, is that, if the registered beneficiary has an advanced degree from an accredited and not-for-profit United States university, the likelihood of the selection will be significantly increased. It should be noted in this regard that only degrees from qualifying institutions will make an individual eligible for the 20,000 quotas. A degree from a for-profit or unaccredited institution will not be considered valid for this purpose. It should further be noted that the advanced degree held need not be relevant to the beneficiary’s/employee’s proposed H-1B position.
As occurs every year, the most important factor that will determine the percentage of registrations that are selected will be how many registrations are filed by the entities that have traditionally been the largest consumers of H-1B Cap numbers. These include some well-known IT outsourcing companies. Given the new beneficiary-centric system adopted by USCIS, the volume of registrations should be much lower this year than in 2023. It is almost certain, however, that the agency will receive more registrations than can be accommodated under the 65,000 and 20,000 quotas. It remains to be seen if the USCIS will receive enough H-1B petitions from the initial round of selections to avoid conducting further lotteries later in the year, as has occurred in the past.
Our Advice
Employers that have identified current or prospective employees who will need or benefit from H-1B status should familiarize themselves with the various steps involved in filing an H-1B cap registration and should be especially mindful of the time frames involved. Such employers should also pay careful attention to the drafting of the registration, since even a minor oversight or typographical error could cause the registration to be rejected or could result in erroneous information being conveyed to the USCIS that could result in the denial of an H-1B petition if the beneficiary is selected in the lottery. The attorneys at Tafapolsky & Smith are thoroughly familiar with the nuances of the H-1B cap registration process and are available to assist any employers that wish to participate in this process.