What happened?

On January 30, 2024, the U.S. Citizenship, and Immigration Services (USCIS) published the final rule that modernizes the selection to a beneficiary centric system with more robust anti-fraud mechanisms.

What are the details?

As previously reported by Vensure, the DHS published the Final Rule that aims to strengthen integrity measures for the H-1B Program. The DHS intends to publish a separate Final Rule to address some of the remaining provisions contained in the Notice of Proposed Rule Making (NPRM).

According to CDF Labor Law Firm, “last year (2023), USCIS received 780,884 lottery entries, with 408,891 of those entries from individuals who entered using more than one employer…The same people were selected multiple times, whereas individuals who only entered once (filed 1 petition) were not selected at all.” 

The key changes in this Final Rule are:

• Beneficiary centric selection process: previously, entities filed many petitions for the same candidate to increase the chances of selection, with the added cost of filling the approved cap. In this change, filing many petitions for the same candidate will not increase the changes for selection nor fill the visa cap, because petitions will be limited to only 1 per candidate (the rest will be considered invalid).

• Flexibility date for certain H-1B cap subject petitions: USCIS clarifies the requirements regarding the requested employment start date on certain petitions subject to mandated H-1B cap to permit filing with requested start dates that are after October 1 of the relevant fiscal year, consistent with current policy.

• Integrity measures related to H-1B Registration: USCIS can deny or revoke H-1B petitions where the registration contained a false attestation or was invalid, as well as if the fee paid was declined, not reconciled, disputed, or invalid after submission.

• Valid Identification Requirement: for Fiscal Year 2025 initial registration period, the registration must include the beneficiary’s valid passport or travel document.

• Streamline the application process: this will be done by:

• Launching on February 28, 2024, the organization accounts, which will allow multiple people within an organization and their legal representatives to collaborate on and prepare H-1B registrations and petitions, and any associated Form I-907, as well as online filling of Form I-129 and associated Form I-907, and
• On April 1, USCIS will begin accepting online filing for H-1B cap petitions and associated Forms I-907 for petitioners whose registrations have been selected.
• Paper fillings Form I-129 and associated Form I-907 will still be available.

For Fiscal year 2025, the H-1B Cap registration period opens on March 6, 2024, and will close on March 22, 2024.

For additional information, please read the Final Rule that can be found on the “Resources” section.

Business Considerations

• Although a more strict and costly process has been introduced, review and update your polices, practices, and procedures for the H-1B petitions.
• Take a proactive approach and plan your fillings accordingly.
• Take your time to familiarize yourself with the new forms, requirements, and online procedure.
• Expect the second part of the rule to be provided by DHS for the rest of the provisions, which Vensure will communicate as soon as it is released.
  
  

Resources

• USCIS Announces Strengthened Integrity Measures for H-1B Program
• Final Rule: Improving the H-1B Registration Selection Process and Program Integrity
• Forms I-129 – Petition for a Nonimmigrant Worker 
• Form I-907 – Request for Premium Processing Service


Source References

• • DHS Proposed Ruling for the H-1B (VensureHR)
• • Change is Coming to the H-1B Visa (CDF Labor Law LLP)
• • USCIS announces strengthened integrity measures for H-1B program (Ernst & Young Global Limited)
• • USCIS Announces FY 2025 H-1B Cap Registration Details and Updates (Seyfarth Shaw LLP.)

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