Division of Homeland Safety’s U.S. Citizenship and Immigration Providers (USCIS) just lately issued a closing rule that modifications H-1B registration choice and makes different modifications associated to the registration course of. Starting in March 2024, registration choice for the chance to file an H-1B petition topic to the annual “cap” on H-1B visa numbers can be “beneficiary centric.”

USCIS’ closing rule is a partial implementation of the 94-page proposed rule issued in October 2023 to “modernize” the H-1B program and takes impact on March 4, 2024. Registration for H-1B visa numbers obtainable starting October 1, 2024, opens at 12 p.m. Jap Time on March 6, 2024.

USCIS obtained 1,315 feedback of which 510 addressed the registration proposal. USCIS proceeded with a closing rule on the registration-related subjects, primarily based on feedback favoring a change to a beneficiary centric system earlier than the following registration interval and on USCIS’ program expertise.

Beneath the present system, USCIS selects from eligible registrations, which provides a noncitizen (the beneficiary) for whom a number of registrations have been filed by potential H-1B employers a better likelihood of choice than a noncitizen with a single registration filed for them. In 2023, USCIS expressed “critical considerations” about whether or not abuse of the registration system resulted within the company receiving extra eligible a number of registrations than single registrations—408,891 in contrast with 350,103. USCIS anticipates that altering to choice by noncitizen-beneficiary “will cut back the potential for gaming the method to extend probabilities for choice and assist be certain that every beneficiary has the identical likelihood” of choice.

When USCIS selects a beneficiary with a number of registrations, these potential H-1B employers every can have the chance to submit an H-1B petition through the submitting interval USCIS designates. As underneath the present system, a possible H-1B employer could solely submit one registration on behalf of a beneficiary, however will not be restricted as to the variety of registrations so long as every is for a unique beneficiary (and meets the opposite registration necessities). USCIS views the beneficiary centric system as doubtlessly giving the beneficiary better autonomy and skill to barter over their H-1B employment.

As with the proposed rule, USCIS is not going to be notifying the employers that there are a number of registrations. The American Immigration Council (Council) and the American Immigration Legal professionals Affiliation (AILA) had commented that not offering discover wastes sources of a number of employers, who ought to have the chance to carry out a cost-benefit evaluation, and will increase company workload from pointless H-1B petition filings. Whereas USCIS could approve a number of H-1B petitions, the beneficiary can solely work full-time for one of many petitioners.

USCIS individually issued a closing rule growing most  charges for employment-based filings, together with a change within the registration payment from $10 to $215. Because the new charges take impact on April 1, 2024, this enhance is not going to apply to the March 2024 registration. Nonetheless, potential employers submitting H-1B petitions primarily based on the chosen beneficiary centric registration pays considerably larger charges than final 12 months.

The ultimate rule additionally contains the next registration-related subjects:

• Requiring the beneficiary’s legitimate passport or journey doc info for registration and proscribing beneficiary registration to just one such doc. USCIS initially added solely a passport requirement however in response to feedback, together with the Council and AILA’s, that this may exclude stateless individuals, refugees, and others with out entry to a legitimate passport, USCIS added journey paperwork as “per the Administration’s dedication to selling entry for refugees and stateless people.” Any discrepancy between the data supplied for registration and the doc used to hunt admission to the USA, or the data supplied within the H-1B petition could lead to petition denial or revocation. Nonetheless, the company could use its discretion to discover a change permissible, giving examples reminiscent of a reputation change because of marriage or doc renewal or alternative.
• Clarifying that “per present USCIS coverage,” the requested begin date in an H-1B petition could also be later than October 1 (which is the primary day cap-subject H-1B visa numbers can be found in a fiscal 12 months). Till the company was sued in 2021, and ended the apply, the company had rejected some H-1B petitions that requested a later begin date.
• Codifying that USCIS could deny or revoke a cap-subject H-1B petition when:
  • The beneficiary’s figuring out info within the petition has modified from the registration.
  • The registration features a false attestation or is “in any other case invalid” (potential H-1B employers attest that there’s a authentic job supply and they aren’t working with others to enhance the possibility of choice).
  • The registration payment is invalid (which means the company couldn’t accumulate the payment).
  • The petition filed will not be primarily based on a legitimate registration.
• Codifying that USCIS could deny, or revoke upon discover after approval, an H petition (not simply H-1B) when statements on any of the next are “inaccurate, fraudulent, or misrepresented a cloth truth:” the H-1B registration (together with a false attestation); an H petition; a Labor Situation Software that have to be filed with the H-1B petition; or a brief labor certification that have to be filed with a petition for an H-2A momentary agricultural or H-2B momentary non-agricultural employee. Whereas these laws apply to different H classes, they’re associated to the registration course of of their applicability to statements on the registration and cap-subject H-1B petition filings.
• Including a provision that the beneficiary-centric registration, delayed begin date, and denial/revocation laws could also be separated (severed) if a lawsuit is filed and a courtroom finds some however not all the laws invalid.

USCIS’ recognition that the registration system wanted to be modified and its willingness to implement the beneficiary centric system in time for the following time cap-subject H-1B visa numbers can be obtainable (on October 1, 2024) are a welcome enchancment. However solely Congress can alleviate the substantial demand for H-1B employees, and the lack of STEM professionals and different extremely educated employees who go away the USA as a result of they can’t acquire an H-1B classification, by growing the H-1B visa numbers obtainable yearly to these not exempt from the cap.

FILED UNDER: H-1B, USCIS