Final H-1B Rule Released

U.S. Citizenship and Immigration Services (USCIS) published a preview of a final rule entitled “Improving the H-1B Registration Selection Process and Program Integrity.”

Big picture: The final rule modifies the selection process for H-1B registrations, start date flexibility for certain H-1B cap-subject petitions, and adds additional integrity measures.

The final rule’s most significant change is that USCIS will select registrations by unique beneficiary instead of selecting by registration.

This rule narrowly addresses the H-1B selection process. It does not finalize the other regulations in the proposed rule, “Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers,” published on October 23, 2023. USCIS received 1,315 public comments on the proposed rule, with most commenters expressing support or suggestions for improvements.

• FY 2025 H-1B Cap Dates
  The rule will be finalized on February 2, 2024, and will go into effect on March 4, 2024.
• USCIS has announced that the initial registration period for the FY 2025 H-1B cap will open at noon Eastern on March 6, 2024, and run through noon Eastern on March 22, 2024. The registration fee for March 2024 will remain $10.
• USCIS intends to notify account holders and upload selection notifications to their accounts by March 31.

H-1B Selection Process

The rule fundamentally changes how H-1B beneficiaries are selected in the annual registration process. Previously, an employer submitted a registration on behalf of a potential employee, and USCIS randomly selected registrations. Because there were no restrictions on the number of registrations that can be submitted on behalf of a beneficiary, the result was that a single beneficiary could have multiple opportunities to be selected.

What’s next: The rule alters this process by selecting registrations based on a unique beneficiary regardless of the number of registrations submitted. The rule allows a beneficiary to enter the selection process with multiple registrations, but the selection will be limited to the unique beneficiary.

Why it matters: This updated process creates a level playing field where an individual with a single job offer and an individual with multiple job offers have an equal opportunity to be selected.

• If a beneficiary is selected, each employer registrant who submitted a registration on their behalf will be notified of the selection and can file a petition on that beneficiary’s behalf.
• USCIS will adjudicate each selected registration, even when filed by multiple employers on behalf of the same beneficiary.
  DHS anticipates that the changes will help each beneficiary have the same chance of being selected regardless of how many registrations are submitted on their behalf.

Yes, but: DHS also proposes to add that if a petitioner submits more than one registration per beneficiary in the same fiscal year, all of the registrations submitted by the petitioner for the beneficiary will be considered invalid, and USCIS may deny or revoke the approval of any petition filed for the beneficiary based on those registrations.

Changes from the Proposed to Final Rule

The final rule largely mirrors the relevant portion of the proposed rule relating to H-1B selection but makes a few adjustments based on public comments.

Changes from the proposed rule to the final rule are as follows:

• Registrations may include either a passport or valid travel document, whereas the proposed rule only allowed the submission of passport. This change addresses a concern that stateless individuals or refugees would not be eligible if they did not have a passport.
• However, to prevent fraud, the final rule clarifies that if a beneficiary attempts two entries into the selection process by submitting both a passport and a travel document, USCIS may find their registrations invalid and deny or revoke the approval of any H-1B petition.
• The proposed rule prohibited related entities from submitting multiple registrations for the same individual. This provision was not included in the final rule; however, it could be included in a subsequent final rule.

Other Key Updates in the New Rule

Passport or Travel Document Requirement: Because the integrity of the new selection process will rely on USCIS’s ability to accurately identify each individual beneficiary, DHS will now require the submission of the beneficiary’s valid passport information or travel document information and prohibits a beneficiary from being registered under more than one travel document or passport.

Start Date Flexibility For Certain H-1B Cap-Subject Petitions: The final rule clarifies the requirements regarding the requested employment start date on H-1B cap-subject petitions to allow fillings with requested start dates after October 1 of the relevant fiscal year, consistent with current USCIS policy.

Multiple Registrations by Related Entities: DHS is not finalizing the proposed change prohibiting related entities from submitting multiple registrations for the same beneficiary at this time and will address and may finalize the proposed provision in a subsequent final rule. However, submitting multiple registrations for the same beneficiary will not increase the chance of selection, given that USCIS will now select registrations by unique beneficiary.

Additional Integrity Measures: The final rule also codified USCIS’s ability to deny H-1B petitioners or revoke an approved petition where ​​there is a change in the beneficiary’s identifying information from the identifying information as stated in the registration to the information as stated in the petition; the underlying registration contained a false attestation or was otherwise invalid; the registration fee was invalid; or where the H-1B cap-subject petition was not based on a valid registration.

ReadMore:Erickson Immigration Group

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