Think Immigration: The New Beneficiary-Centric H-1B Registration Process – Good News for Employees, Mixed Bag for Employers

2/22/24 AILA Doc. No. 24022203. Business Immigration, H-1B & H-1B1 Specialty Occupation

When U.S. Citizenship and Immigration Services (USCIS) announced last April that it had received over three-quarters of a million registrations for the 85,000 available H-1B visas, it was the latest in years of signals that the H-1B program wasn’t working. The registration system, which was intended to simplify the process of applying for an H-1B visa, was inundated with submissions on behalf of individuals with multiple registrations. In fact, over 400,000 of the 758,000 registrations were filed for individuals for whom more than one registration was submitted, an increase of over 140% from just the preceding year. The combination of a relatively easy application process with the low $10 filing fee made the registration process susceptible to misuse on behalf of individuals seeking to improve their odds of “winning the H-1B lottery.”

Recognizing that this gaming of the H-1B registration process created an inequitable system that did not serve the national interest, USCIS has implemented, as AILA and many other interested parties recommended, a “Beneficiary-Centric” registration process for the 2025 Fiscal Year. Instead of selecting by employer registration, USCIS will now select registrations by unique beneficiary. All beneficiaries must have a valid passport or other valid travel documentation as the number of that document will be used in the selection process. Each unique beneficiary who has a registration submitted on their behalf will be entered into the “lottery” once, regardless of how many employer registrations are submitted on their behalf. If a beneficiary is selected, each employer that submitted a registration on that beneficiary’s behalf will be notified of the beneficiary’s selection and will be eligible to file a petition on that beneficiary’s behalf during the H-1B petition filing period starting on April 1st.

This is good news for prospective H-1B temporary workers. The Beneficiary-Centric system will level the playing field and reduce incentives for fraud and abuse. An individual for whom one registration was submitted will have the same chance of being selected as someone for whom multiple registrations were filed. Although the new system does not preclude multiple registrations for legitimate reasons (such as when an individual has more than one bona fide job offer), it does significantly decrease the value of gaming the system with multiple registrations solely to improve the odds of selection.

Because the new system will allow all employers submitting registrations for a selected individual to file H-1B petitions on their behalf, it also provides a greater opportunity for these individuals to negotiate job offers between/among prospective employers to an extent that did not exist previously. Unlike the prior system, in which only employers with selected registrations could file an H-1B petition, all employers submitting a registration may file an H-1B petition for the selected individual. Thus, H-1B beneficiaries with multiple registrations may now have greater leverage, like their U.S. worker counterparts, to negotiate better salaries, benefits, etc. as part of the hiring process.

For employers, the new registration process is something of a mixed bag of changes. The Beneficiary-Centric system will enable all employers, regardless of size and resources, equal opportunity to sponsor critically needed foreign talent. With the likelihood that less gaming will result in the filing of significantly fewer registrations, employers should also experience a less frenetic registration process and an enhanced likelihood (at least compared to recent years) that a prospective employee may be selected. The final rule confirms existing agency practice allowing petitioners to request a start date after October 1st so that employers may request more realistic start dates based on anticipated adjudication timelines.

Nevertheless, employers are concerned that the new registration system may facilitate scenarios in which substantial time, effort and expense is invested in an individual who decides to work for another employer that submitted a registration on the worker’s behalf. To enable employers to make better informed decisions about whether to file an H-1B petition on behalf of someone with multiple registrations, AILA had recommended that USCIS provide all employers filing registrations for a selected individual with a simple notice of the fact that that their prospective H-1B worker possessed multiple registrations. For many employers, the H-1B program represents a significant commitment of resources, often beginning many months before the registration period opens. The need for notice is even more acute if the individual has been working for the employer on F-1 practical training for a year or more, as the investment in training and professional development becomes even greater. USCIS declined to adopt AILA’s recommendation, stating in essence that this is an issue better addressed directly between the employer and employee, thus making it an important matter to discuss during the hiring process.

Employers should also take notice of USCIS’ increased authority to deny or revoke cap subject H-1B petitions in which the registration contains false information or are otherwise invalid. AILA requested an exception process for dealing with inadvertent errors in the registration process or registration fee payment issues with the system but again, the agency declined based on the assertion that employers and their counsel have ample opportunities to correct inaccuracies before filing and that the revocation process provides notice and an opportunity to respond.

Lastly, employers would be well advised to consider the effect of multiple petition approvals on a beneficiary’s employment authorization. The supplemental information to the final rule confirms that an approved H-1B petition may remain valid notwithstanding the subsequent approval of another H-1B petition for the beneficiary and indicates that the petition’s validity date in this scenario will be the start date reflected on the Form I-797, Approval Notice, regardless of the “date of filing, the date of adjudication, or the requested start date on the petition.” DHS also confirms that a beneficiary may commence work under any of the approved petitions as long as they remain valid and the beneficiary is in H-1B nonimmigrant status. While this information suggests that each approved petition will operate independently of any other approved petitions for the beneficiary, employers are wise to consider their obligations to amend or withdraw petitions when the individual is the beneficiary of more than one approved H-1B petition and the circumstances of their employment change.

The Beneficiary-Centric H-1B registration system is USCIS’ attempt to reboot the H-1B registration process and ensure that registrations are only submitted by those who seek in good faith to employ the beneficiary. Whether it works as expected will be determined in the weeks ahead, but it is nevertheless a significant improvement over the prior system. Given that Congress for now seems incapable of modernizing the H-1B visa category to align with the needs of our growing economy, administrative enhancements such as this may be the most we can hope for in terms of ensuring the H-1B program better serves the national interest.

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