U.S. Citizenship and Immigration Services (“USCIS”) will conduct the FY 2025 H-1B (“specialty occupation worker”) lottery for cap-subject candidates in March 2024.
The H-1B visa category provides temporary work authorization for individuals in “specialty” occupations that require (at a minimum) a bachelor’s degree in a discipline related to the occupation. The H-1B visa category is statutorily limited to 85,000 new approvals per fiscal year (65,000 for those who qualify under the “regular cap” and 20,000 for those who qualify under the “advanced degree cap”). Registrations have historically outnumbered the total number of available approvals. For this reason, USCIS conducts a lottery to select the candidates an employer will be eligible to petition for and seek H-1B visa status.
Lottery registrations for FY 2025 will be accepted between Noon EST on March 6, 2024, and Noon EST on March 22, 2024. Only fully completed registrations (including payment of the $10 registration fee) submitted before the close of the registration period will be considered. USCIS will then conduct the lottery and issue selection notifications by March 31, 2024. Employers can begin filing petitions for selected individuals on April 1, 2024 through June 30, 2024. Petitions can be filed with start dates of October 1, 2024 or later.
On January 31, 2024, USCIS announced a final rule intended to strengthen the integrity of the H-1B lottery, reduce fraud, and provide a more equitable selection process. The rule formally codified USCIS’s ability to deny or revoke an H-1B petition where the underlying registration contains a false attestation, where the beneficiary’s identifying information on the registration is different from the identifying information on the petition, or where the registration fee is declined or otherwise invalid after submission. Notably, under the final rule, the H-1B lottery registration and selection process will now be “beneficiary-centric,” meaning that USCIS will select registrations by unique beneficiary rather than by registration. As a result, each beneficiary will have an equal chance of selection (within the “regular cap” or the “advanced degree” cap rounds), regardless of how many registrations are entered on his/her behalf. It is unclear how this selection method will impact the historical selection rates of approximately 20-25% for “regular cap” and 33% for “advanced degree cap” cases.
If multiple petitioners (employers) enter a registration for the same beneficiary and that beneficiary is selected, any of the petitioners may file an H-1B petition on behalf of that beneficiary. As such, an individual may be the beneficiary of multiple selections. This final rule is focused on changes to the H-1B registration and lottery selection process. A subsequent final rule will codify additional proposed changes to the H-1B visa category, including how USCIS will treat multiple petitions filed on behalf of the same selected beneficiary and the results of multiple approvals for the same beneficiary.
To enable this “beneficiary-centric” model, beneficiaries are barred from registering with more than one passport or valid travel document. Further, registrations must include information from the same valid passport or travel document the beneficiary intends to use to enter the United States, whether or not the beneficiary is currently in the United States. At the agency’s discretion, it may find that a change in identifying information is permissible where there has been a legal change in name due to marriage, a change in gender identity, or a change in passport number due to renewal or replacement of a stolen passport. We recommend that any beneficiary with an expired or soon-to-be expired passport, or anticipating official changes as noted above, take immediate steps to obtain a new passport.
Other changes to the H-1B program include the creation of “Organizational Accounts” that will allow additional, paper-free collaboration between employers and representatives. USCIS has announced that these accounts will be available on February 28, 2024, to file non-cap subject H-1B petitions (i.e., for employees previously counted against the cap or for cap-exempt institutions). These accounts will be available on April 1, 2024, to file cap-subject H-1B petitions (i.e., for beneficiaries selected in the lottery).
Note that a new edition of Form I-129 used to file H-1B petitions will be available as of April 1, 2024. The new version must be used for all petitions filed on or after that date. Also, effective April 1, 2024, the Form I-129 filing fee will increase from $460 to $780 and there will be an additional asylum program fee of $600 (this fee is reduced to $300 for employers with 25 or fewer full-time employees and to $0 for nonprofit employers). The fraud detection ($500) and ACWIA ($750 or $1500) fees will remain the same.
Employers and beneficiaries needing H-1B visas are advised to connect with counsel early on to begin case assessment and develop possible alternative strategies in the event the beneficiary is not selected in the lottery. Early assessment and advising is particularly important for F-1 students employed under Optional Practical Training (OPT) who may have only a limited number of “plays” in the lottery before exhausting their employment authorization. The H-1B visa may also be used strategically for employees currently authorized to work under other statuses (e.g., TN, E-3, O-1). For this reason, we encourage employers to inquire whether seeking H-1B status is advisable or necessary for employees in other nonimmigrant visa statuses.
• The FY 2025 H-1B lottery registration period will run from Noon EST on March 6 through Noon EST on March 22 and selection notification will be issued by March 31, 2024
• Employers may file petitions for selected registrations from April 1 through June 30, 2024
• Approved petitions will allow for H-1B visa work authorization effective October 1, 2024 (or later)
• New “beneficiary-centric” system enables multiple employers to submit registrations for the same “unique beneficiary”, and any of the employers may petition if that beneficiary is selected
• Beneficiaries are barred from registering with more than one passport or valid travel document
• Any beneficiary with an expired or soon-to-be expired passport, or anticipating official changes in biographical information, should take immediate steps to obtain a new passport.
• “Organizational Accounts,” allowing for additional, paper-free collaboration between employers and representatives, will be available on February 28, 2024
• Employers should review current and prospective employees (particularly those currently employed pursuant to F-1 OPT) and contact immigration counsel to discuss H-1B eligibility and the lottery process by February 2024.
Please contact someone at Dentons immediately to ensure that current and prospective employees are included in this year’s lottery or to discuss any questions you may have regarding the above information.