H-1B Registration Final Rule of February 2, 2024, and More - Get Ready!

by Alan Lee, Esq.

DHS’s February 2, 2024, final rule for H-1B registration, “Improving the H-1B Registration Selection Process and Program Integrity”, included the most important attempt at reform of the H-1B registration system – adding fairness – one beneficiary, one chance. The system will now be beneficiary-centric under which the beneficiary will have one chance of being selected regardless of how many organizations apply for him or her. The system to be replaced allowed multiple organizations to sponsor candidates for registration, in effect giving many candidates more selection chances. Over the years since the first registration in 2020 for the FY-2021 H-1B cap, gaming of the system became endemic as the unscrupulous saw little penalty in conspiring to give applicants more company sponsorships, and the number of registrations zoomed from 274,237 in FY- 2021 to 308,613 in FY-2022, 483,927 in FY-2023, and in the last year, 780,884 for FY-2024. Without the intervention, registrations could conceivably have topped 1 million for this year.

The rule outlines timing and procedure for this year’s registration:

Timing –

  • Registrants will be able to create new accounts beginning at noon Eastern on 2/28/24.
  • Representatives may add clients to their accounts at any time, but both representatives and registrants must wait until 3/6/24 to enter beneficiary information and submit the registration with the $10 fee.
  • The initial registration period will open at noon Eastern on 3/6/24 and run through noon Eastern on 3/22/24.
  • USCIS intends to notify account holders and upload selection notifications to their accounts by 3/31/24.

Procedure –

  • The $10 fee remains for this year (it is projected that the registration fee will rise to $215 next year).
  • The process will be beneficiary-centric instead of organization-centric.
  • Online filing of non-cap Form I-129’s (Petition for a Nonimmigrant Worker) and associated I-907’s (Request for Premium Processing Service) will begin on 2/28/24.
  • Online filing of H-1B cap cases and associated I-907’s begins on 4/1/24.
  • USCIS will transition paper filing location for H-1B and I-907 petitions from service centers to the USCIS lockbox with the new filing locations to be announced in March.

To further combat fraud in the registration process, participating applicants must have a valid passport or travel document at the time of registration. Without such, they cannot participate. While renewal of the passport or travel document can be done later, the final rule says that “Such circumstances could include… a change in passport number or expiration date due to renewal or replacement of a stolen passport, in between the time of registration and filing the petition.” Other parts of the rule have words like “requiring valid passport or travel document information” … “While DHS recognizes that some individuals may not possess a valid passport or travel document, DHS has a strong interest in requiring passport or travel document information for each beneficiary….”

Emphasis was also placed upon this in the USCIS email announcement on January 30, 2024, specifying that, “USCIS will require registrants to provide valid passport information for valid travel document information.”

This year promises to be much different from past registration years. USCIS has already projected a much smaller number of registration applications than last year that will turn into a higher number of successful registrations if USCIS selects in the same average range of numbers as in the three years prior to the past year. So organizations and applicants interested in cap H-1B petitions should get ready for an interesting ride beginning this month.

It should be noted that unless the new January 31, 2024, final rule on fee increases, “US Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements” is delayed or stopped by legal action, most organizations with selected registrants will have to pay enhanced fees to file H-1B petitions. For most nonprofits, the fees will remain the same. For small for-profit employers (25 or less full-time employees in the United States), the increases will be less, while those on larger for-profit employers (with 26 or more full-time employees in the United States) will be more. In addition to the regular add-ons ($500 fraud fee and either $750 or $1500 job training fee), both of the latter categories will have to pay a $600 asylum program fee, and the larger for-profit employers an enhanced $780 I-129 fee instead of the regular $460 fee. Fee increases are slated to go into effect on April 1, 2024.

About The Author

Alan Lee, Esq. is an exclusive practitioner of immigration law based in New York City with an AV preeminent rating in the Martindale-Hubbell Law Directory for 20+ years, registered in the Bar Register of Preeminent Lawyers, on the New York Super Lawyers list (2011-12, 2013-14, 2014-2015, 2015-2023), and recognized as a New York Area Top Rated Lawyer. He has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Epoch Times, Pakistan Calling, Muhasba and OCS; testified as an expert on immigration in civil court proceedings; and is a regular contributor to Martindale-Hubbell's Ask-a-Lawyer program. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004; his 2004 case in the Second Circuit Court of Appeals, Firstland International v. INS, successfully challenged Legacy INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof, although its central holding that the government had to notify approved immigrant petition holders of the revocation prior to the their departure to the U. S. for the petition to be able to be revoked was short-lived as it was specifically targeted in the Intelligence Reform Act of 2004 (which in response changed the language of the revocation statute itself). Yet Firstland lives on as precedent that the government must comply with nondiscretionary duties established in law, and such failure is reviewable in federal courts. His 2015 case, Matter of Leacheng International, Inc., with the Administrative Appeals Office of USCIS (AAO) set nation-wide standards on the definition of "doing business" for multinational executives and managers to gain immigration benefits.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.