FY 2025 H-1B cap season has begun: What you need to know

The annual H-1B cap season has begun for Fiscal Year 2025. Once again, there will be a two-step process – the registration step and then, if the registration is selected in the H-1B cap lottery, the petition step. Now is the time to start getting ready for the registration process and to review any potential H-1B petition issues.

Attorneys generally review for issues relevant to the petition during the registration step – for example, issues related to H-1B specialty occupations or job title.

This will be the fifth year that the U.S. Citizenship and Immigration Services has used the electronic registration tool as part of the H-1B lottery process. The 2019 regulations introduced this electronic registration process, requiring employers first to file registrations seeking the opportunity to file H-1B Petitions for the beneficiaries in the selected registrations. Last year, almost 781,000,000 registrations were filed for the 85,000 H-1B cap visas available (20,000 slots are allocated to persons with advanced degrees from eligible U.S. public or nonprofit institutions of higher education).

We are waiting for the USCIS to announce what the FY25 registration period will be. For Fiscal Year 2024, registration was open from noon Eastern Time March 1, 2023, through noon Eastern Time March 17, 2023. We expect the FY25 period to be similar.

We also are waiting to see whether the selection process will change. The U.S. Department of Homeland Security issued a proposed rule in October that would modernize the H-1B program. If that proposed rule is made final and ready to be implemented before the registration period begins, then the process could change accordingly.

The proposed selection process seeks to change from one that incentivizes filing multiple registrations to one that is beneficiary-based. Each beneficiary under the proposed rule would be entered into the selection process only once, no matter how many registrations were submitted on the beneficiary’s behalf. The purpose is to eliminate the advantage to beneficiaries with multiple registrations filed on their behalf and to address fraud discovered during the FY24 H-1B registration in which a few employers colluded to submit multiple registrations for the same beneficiaries.

Registrations will be for periods of employment that begin October 1, 2024, which is the first day of the federal government’s FY25.

The online registration form will request basic information about the prospective H-1B employer and employee. The form is expected to be identical to last year’s form, and will ask for the following:

• The employer’s name, Federal Employer Identification Number, and primary office address.
• The name, job title, daytime phone, and email address of the employer’s authorized representative.
• The beneficiary’s full name, date of birth, country of birth, country of citizenship, gender and passport number.
• Whether the beneficiary has earned a master’s or higher degree from a qualifying U.S. institution of higher education, and, if so, the degree and institution.

Employers must file a separate registration for each proposed H-1B worker. The current fee is $10 per registration.

Under the current system and proposed rule, multiple registrations by a single employer for the same individual are not permitted; however, an individual can be the beneficiary of a registration filed by different employers. About 409,000 of the FY 2024 registrations involved eligible registrations for beneficiaries with multiple registrations.

Under the current system, if the number of registrations exceeds the annual cap of 85,000 visas, the USCIS will make random selections, but only from among the candidates who have been registered. If there are not enough registrations, the USCIS may continue accepting submitted registrations or open a new registration period. If the random selection process is necessary, the USCIS will notify those who filed registrations whether their registration was selected. The notification deadline for FY24 registrants was March 31, 2023.

Under the proposed system, if a random selection is necessary, “then the selection would be based on each unique beneficiary identified in the registration pool, rather than each registration.”

If a registration is accepted by the USCIS, the employer will have 90 days from notification to file its actual petition. The Registration Selection notice specifies the Service Center where the petition is to be filed.

Planning for the FY25 cap

It is imperative for employers seeking H-1B employees in FY 2025 to plan ahead so that they can get their registrations filed accurately and on time. We recommend the following:

Identify H-1B candidates. Typically, these may include the following:

• 
  Employees working in F-1 student status with an employment authorization document (STEM or non-STEM), or derivative H-4 spouse with employment authorization document.
• TN NAFTA or E-3 Australian national professional workers who may want to pursue permanent residence in the United States (it is legally preferable first to be in H-1B status before filing for permanent residence).
• L-1B multinational professional level specialized knowledge employees.

• Review and finalize job offers, descriptions and salaries. It is important to make sure that job descriptions are detailed and show a direct connection between the candidate’s educational level and the offered job duties. With respect to salary, consideration should be given to offering more than the Level 1 prevailing wage if possible.
• Gather the relevant documents needed to prepare the H-1B petition.
• Remember when the caps and the registration window do not apply. Colleges and universities, nonprofit research organizations, and other related entities are exempt from the H-1B cap. Also exempt are H-1B extension petitions and H-1B “change of employer” petitions for foreign nationals who have already been counted against the cap.

Background on H-1B program

The H-1B program allows U.S. companies to temporarily employ foreign workers in professional occupations typically requiring a bachelor’s degree or higher, or the equivalent. Congress has a mandated cap of 65,000 H-1B visas (commonly known as the “regular cap”) and an additional 20,000 H-1B visas for beneficiaries who have earned a U.S. master’s degree or higher from a qualifying institution of higher education (commonly known as the “advanced degree cap”). For many years, the USCIS has received more H-1B petitions than it can accept for processing, which results in a computer-generated random selection process, known as the “H-1B Lottery.”

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