On Friday, February 2, 2024, U.S. Citizenship & Immigration Services (USCIS) published a Final Rule in the Federal Register that will bring significant changes to the annual H-1B cap selection process (89 FR 7456). The Final Rule is based on a Notice of Proposed Rule Making (NPRM) for H-1B modernization published on October 23, 2023 (88 FR 72870). Although the NPRM included several H-1B modernization measures, the Final Rule is solely about H-1B cap selection. The other proposals in the NPRM are expected to be the subject of a separate Final Rule at a later date.
The Final Rule on H-1B cap selection changes will take effect on March 4, 2024, just prior to the opening of the upcoming H-1B cap registration window on March 6. The Final Rule will make the upcoming and future H-1B cap selection processes “beneficiary-centric.” Details follow.
Making H-1B cap selection lottery “beneficiary-centric”
The Final Rule bases the H-1B cap selection process on unique beneficiaries rather than unique registrations. It is hoped that this will reduce the incentive for employers and individuals to pursue registrations without the existence of a bona fide job offer. Multiple employers may register the same beneficiary, assuming each has a bona fide job for them. If a beneficiary registered by multiple employers is selected in the H-1B cap lottery, each employer will receive a selection notice and may file an H-1B petition based on their bona fide job offer that the beneficiary intends to accept -- for example, two employers each offering part-time work to the beneficiary. The Final Rule does not bar related entities from registering the same beneficiary, so long as there is a legitimate business need for those related entities to file multiple H-1B petitions for the same beneficiary.
The key principles in the Final Rule are that a beneficiary will be entered only once in the lottery regardless of the number of employers registering the beneficiary, and that a bona fide job offer must underlie each registration.
To enforce the limit of one H-1B cap selection per beneficiary, beneficiaries will be identified not only by the same information used currently, but also by their passport data (or travel document data if the beneficiary is a refugee or stateless and therefore cannot obtain a passport). Passport or travel document data will be required in all cases. In addition, with limited exceptions, the beneficiary must use the same passport or travel document in the registration that they will use to enter the United States on their future H-1B visa. If an individual has more than one passport or travel document, only one may be used for H-1B cap registration.
Jewell Stewart & Pratt will watch for developments related to the other H-1B modernization proposals that are not yet final and will post updates here as they occur.
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