United States: H-1B Cap Season: A Changing Landscape

March Madness will once again not fail this Fiscal Year 2025 (FY25) H-1B cap season. The shift in 2020 to the "new" H-1B registration system continues to be a work in progress. The USCIS strength and conditioning exercises will give this H-1B cap season an added boost. The USCIS is flexing its muscles and opted to shoot some 3s for additional points with increased USCIS filing fees to take effect on April 1, 2024. This is discussed at length in our blog post,  USCIS Fee Hikes Effective April 1 – 4 Key Takeaways for Employers. However, employers will get one last free throw shot, as the $10 H-1B Registration Fee remains intact this fiscal year, but will increase to $215 in the next fiscal year. The USCIS has also announced that the initial registration period for the FY25 H-1B cap will open at noon (ET) on March 6, 2024, and run through noon (ET) on March 22, 2024.

The NCAA conference realignment is not the only shake-up in town. There are other anticipated changes to the H-1B registration process. As shared in our blog post,  10 Hot Tips for Employers to Consider This H-1B Cap Season, which we highly encourage you to review, we provide not only helpful tips for employers but also explain that a change in the H-1B landscape has been inevitable. The rise in the number of H-1B registration applications had to be tackled with a measly 10-12% selection rate.

"Beneficiary-Centric" Lottery Registration Process

The USCIS will implement a "Beneficiary-Centric" lottery registration process to help solve the problem of multiple registration applications filed on behalf of beneficiaries.

This chart shows registration and selection numbers for fiscal years 2021-2024 (as of July 31, 2023). ¹

What is notable from this chart is more than half of the FY24 H-1B registrants had multiple registration applications filed on their behalf. This fact was a key motivation for USCIS to make changes to establish a more level playing field. The H-1B Modernization Rule published in October 2023, has implemented a "Beneficiary-Centric" Lottery Registration Process to be effective for the FY25 H-1B registration period starting in March 2024. The proposed change in the lottery system will allocate H-1B visa numbers by beneficiary (employee) rather than by petitioner (company). This pivot is intended to dissuade beneficiaries from soliciting multiple companies from entering them into the lottery. With more than half of the registrants finding multiple employers to enter them into the lottery last fiscal year, their odds in the registration system increased. Implementing this measure this year and combining it with the increase in fees next year should reduce the number of registration applications in the near future.

Additional changes to prevent the increase in the number of registration applications included the use of passports as a critical factor. Beneficiaries (specifically, those who are dual citizens) will be required to register under one passport or travel document in the H-1B registration system. In addition, the bar on multiple registrations submitted by related corporate entities will continue to be in effect. These measures reduce the number of multiple applications filed for the same beneficiary, which is consistent with the USCIS registration-related integrity measures.

H-1B Organizational Accounts

Another anticipated change this cap season is the use of new USCIS organizational accounts, which should be ready for the FY25 H-1B registration season. Registrants will be able to create new accounts beginning at noon (ET) on February 28, 2024. The "registration accounts" that employers have been accustomed to since the start of the H-1B registration system will give way to " organizational accounts" in the USCIS online account system. For those with existing registration accounts, they will be able to upgrade to an organizational account rather than create a new account.

The organizational accounts are to serve collaborative purposes, where an organization may include multiple designated "Administrators" and their legal representatives to prepare H-1B registration applications and H-1B petitions. This option includes an optional H-1B online filing. However, time will tell whether an online H-1B filing will be efficient for all parties. There will be a short and limited window for organizations and legal representatives to adopt the new organizational accounts and online filing option.

Employers should be prepared for these anticipated changes and associated potential technical issues and plan well in advance. Our immigration team is available to assist with your immigration needs. And good luck to all of the H-1B registrants this year!

Footnote

1. U.S. Citizenship and Immigration Services, H-1B Electronic Registration Process at:  https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-electronic-registration-process.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.