On February 2, 2024, the Department of Homeland Security (DHS) will issue a final ruledesigned to improve the integrity of the H-1B registration program. The rule, titled, “Improving the H-1B Registration Selection Process and Program Integrity,” will take effect on March 4, 2024 for H-1B registrations submitted in March 2024 for the upcoming FY2025 H-1B registration season.

Proposed H-1B Regulation Has Been Scaled Back

As discussed in our prior alert, on October 23, 2023, DHS issued a Notice of Proposed Rulemaking (NPRM) that proposed to significantly modify the H-1B visa program.However, this final rule focuses solely on the H-1B Cap registration selection process.

The Final Rule Focuses On H-1B Registration

The final rule changes the way that United States Citizenship and Immigrations Services (USCIS) will select registrations, and attempts to strengthen the integrity of the H-1B registration process. The main features of the final rule are:

• Creation of a “Beneficiary-Centric” H-1B registration selection process: beneficiaries with multiple registrations would only be counted once for selection purposes. Each beneficiary who has a registration submitted on their behalf would be entered into the selection process once, regardless of the number of registrations filed on their behalf by different employers. This will remove the advantage of having multiple registrations submitted for a single beneficiary.
• Multiple registrations will continue to be accepted, but each beneficiary will only be counted once based on their passport or travel document. A petitioner may file an H-1B cap-subject petition on behalf of a registered beneficiary only after a properly submitted registration for that beneficiary has been selected for that fiscal year.
• Codification of USCIS’s ability to deny or revoke H–1B petitions where the underlying registration contained a false attestation or was otherwise invalid.USCIS will have the right to request proof of a bona-fide job offer from an employer that submits an H-1B registration.
• The final rule does not contain language that prevents “related” employers from filing multiple H-1B cap registrations for the same individual. DHS concluded that based on the “beneficiary-centric” selection process, it would reduce the incentive for related employers to submit registrations for the same beneficiary.

Finally, one disappointing omission in the final rule is that it does not extend H-1B “cap-gap” eligibility, which was part of the proposed rule. Currently, the F-1 OPT “cap-gap” extension is only valid through September 30 of the same calendar year, which can be problematic due to USCIS processing delays, and the advent of multiple H-1B registration lottery selections. The proposed rule would have extended H-1B “cap-gap” benefits until April 1 of the following calendar year. (More details on “cap-gap” benefits can be found in our prior alert.)

H-1B Registration Dates Announced

USCIS also announced the dates for the upcoming FY2025 H-1B registration season (for registrations submitted in March 2024):

• The registration period will be open from 12 pm Eastern on March 6, 2024, and run through 12 pmEastern on March 22, 2024.
• The new online organizational accounts (replacing the prior H-1B registration system) will become available on February 28, 2024. Mintz will provide more details on the new USCIS online organizational accounts to our clients shortly.