(...and increase in candidate lottery registration fee)
By Jennifer Grady, Esq.
On Jan. 30, 2024, USCIS announced a final rule to strengthen integrity and reduce the potential for fraud in the H-1B registration process. The final rule created a “beneficiary-centric” selection process for registrations by employers, allows flexible start dates for certain petitions subject to the H-1B cap, and added more integrity measures related to the registration process. The H-1B visa is a “specialty occupation” visa that requires at least a Bachelor’s Degree or equivalent for a position with a bona fide U.S. job offer.
Changes Under the Beneficiary-Centric Process
Under the “beneficiary-centric process”, registrations selected in the lottery process are now tied to an applicant passport number, so that each individual only has one chance to be selected in that year’s H-1B lottery. Previously, an unlimited number of companies could submit an application on the applicant’s behalf, creating multiple duplicate entries for the same individual. As a result, applicants with multiple registrations filed on their behalf had a better likelihood of selection than applicants who only had one company submitting a registration for them (think of a raffle—the more tickets you have, the more chances you have to win! Now each applicant gets only one lottery ticket).
The passport or travel document provided in the lottery registration must be the one that the beneficiary, if or when abroad, intends to use to enter the United States if issued an H-1B visa. Selections take place after the initial registration period closes, so there is no requirement to register on the day the initial registration period opens. In fact, the registration period is a 14-day period in early March each year.
Due to the “beneficiary-centric” changes, which actually took place last year, registrations decreased from 780,884 in 2023, to 479,953 in 2023. This had an effect of reducing applications by 39 percent, which in turn, increased a beneficiary’s chance of selection.
In addition, when the applicant submits his or her H-1B lottery registration to USCIS, he or she must attest, under penalty of perjury, that all of the information contained in the submission is complete, true, and correct. If USCIS discovers that this attestation was not true and correct (for example, that a company worked with another entity to submit multiple registrations for the same beneficiary to unfairly increase chances of selection for that beneficiary), USCIS will deny or revoke the petition based on a registration with a false attestation. Furthermore, USCIS may also refer the individual or entity who submitted a false attestation to appropriate federal law enforcement agencies for investigation and further action as appropriate.
Increase in Registration Filing Fee
The non-refundable registration fee has increased from $10.00 to $215.00 per registration. This is also intended to reduce the number of frivolous applications. If the registration is selected, the company must also pay the required filing fees at the time of the submission of the I-129 petition to USCIS. If the applicant is not selected, there will be no additional fees required for that fiscal year. The filing fee amounts depend on the size of the employer and whether the employer is using Premium Processing.
Filing fees must now be paid online by the attorney who is filing the registration on the petitioner’s behalf in the USCIS online portal. As this fee can add up quickly for multiple registrations, we recommend that clients provide the filing fee amounts to the attorney no later than February 20.
When to File?
The lottery registration period begins annually in early March. We recommend applying on the earlier side of the 14-day window so that there is enough time to finish the registration in case of any technical difficulties (especially due to delays from USCIS tech support). The exact start date has not been released yet, but based on years past, it should be between March 1-6.
What Happens If Your Case Is Selected?
If your case is selected, the employer (petitioner) will have a 90-day window between April 1 and June 30 to file an I-129 petition, along with filing fees and supporting documentation, on the employee’s behalf. Once the case is approved, the employee cannot commence work until the first date of the next fiscal year, which always starts on October 1.
In years past, there has been a second lottery around late July/early August to select additional applicants if not all the available seats were taken by June 30. Each fiscal year, USCIS issues only 85,000 new H-1B visas, of which 20,000 are designated for the Master’s Cap for applicants who possess a US Master’s degree; 1,400 are set aside for Chilean Nationals; and 5,400 are reserved for nationals of Singapore.
What If Your Case Is Not Selected?
If your case is not selected, you can consider entering yourself in the lottery registration again the following year (this works best for recent grands on OPT). However, if your status will not allow you to stay in the US for another year, consider alternative visas like the O-1 (for individuals with extraordinary ability), TN (for Mexican and Canadian nationals), E-3 (for Australian nationals), and E-2 visa for investors and their essential employees. These can allow you to start your role within 15 business days of receipt of your case, if it is approved and it was filed with Premium Processing (an additional filing fee).
What If You Were Already Selected in the H-1B Lottery in the Past?
Great news! If a candidate was selected in the lottery under a previous or current employer, and still has time remaining on his or her authorized period of stay, he or she may be eligible for an H-1B transfer. This means that the candidate is “transferring “his or her lottery registration from one employer to another, but a new, complete I-129 application must be filed by the Petitioner on the new employee’s behalf. The employee can commence working for the employer as soon as the application is received.
However, for more security before making the move, the employee may want to wait until the filing fee checks are cashed or an I-797 Receipt Notice is received, to commence work once it’s confirmed that the case was received and not rejected. Another option is to use Premium Processing (for an additional fee), and have an approval from USCIS before leaving the current employer. If the application does not take advantage of Premium Processing, the employee can work for the employer while the case is adjudicating (for up to 240 days).
If USCIS does not issue a Request for Evidence, the applicant could receive an approval within 15 business days. If the employer filed an I-140 petition on the employee’s behalf, there may be a way to “port” this I-140 to the new employer so that the employee can keep his or her Priority Date. As this is often complicated, it’s best to discuss with an attorney before making the leap to a new employer.
Do you have questions about these changes, or the best process for moving forward? Don’t leave your career to chance! The Grady Firm has successfully processed H-1B application and transfers for over a decade. Call us or book online to schedule a free consultation.
The information in this article does not constitute legal advice, and is for informational purposes only. Consult a qualified, licensed immigration attorney regarding the specifics of your case.
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