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Improved H-1B Registration Selection Process for Program Integrity

On January 30, 2024, USCIS announced a final rule to strengthen the integrity of and reduce the potential for fraud in the H-1B registration process. The final rule provides the beneficiary centric selection process for H-1B registrations, start date flexibility for certain H-1B cap-subject petitions, and additional integrity measures related to H-1B registrations. This final rule adopts some of the provisions proposed in the Notice of Proposed Rulemaking published in October 2023 with some changes as described below.

Final Rule for the H-1B Registration Process

1. Program Integrity on the H-1B Registration System

Prospective petitioners seeking to file H-1B cap-subject petitions must first electronically register and pay the associated registration fee for each prospective beneficiary. The final rule adopted the following provisions to limit the potential for abuse of the registration process:

(a) Beneficiary Centric Selection

  • Selection by unique beneficiary, not by registration submitted: The final rule codifies that, instead of selecting by registration, USCIS will select registrations by unique beneficiary. Each unique beneficiary who has a registration submitted on their behalf will be entered into the selection process once, regardless of how many registrations are submitted on their behalf. If a beneficiary is selected, each registrant 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 applicable petition filing period. By selecting a unique beneficiary, DHS would better ensure that each individual has the same chance of selection, regardless of how many registrations their registrants submitted on their behalf.
  • Requirement to submit valid passport information: The integrity of the new selection process would rely on USCIS’s ability to accurately identify each individual beneficiary. Accordingly, the final rule requires registrations to include the beneficiary’s valid passport information or valid travel document information. The rule also prohibits a beneficiary’ registration under more than one passport or travel document.

(b) Registrations with False Information or That are otherwise Invalid

  • USCIS’ ability to deny an H-1B petition or revoke an H-1B petition’s approval for false or invalid registrations: The final rule codifies the USCIS’s ability to deny an H-1B petition or revoke an H-1B petition’s approval when there is a change in the beneficiary’s identifying information from the identifying information as stated in the registration to the information as stated in the petition; the underlying registration contained a false attestation or was otherwise invalid; the registration fee was invalid; or where the H-1B cap-subject petition was not based on a valid registration.
  • USCIS’ ability to deny an H-1B petition or revoke an H-1B petition’s approval for false or fraudulent statements:  The final rule is also further codifying USCIS’ authority to deny an H-1B petition or revoke an H-1B petition’s approval where the statements on the petition, H-1B registration, labor condition application (LCA), or temporary labor certification (TLC) were inaccurate, fraudulent, or misrepresented a material fact. This includes when USCIS determines the attestations on the H-1B registration to be false.

2. Start Date Flexibility for Certain H-1B Cap-Subject Petitions

The final rule also eliminates the text which relates to a limitation on the requested start date:

  • Petitioners can file H-1B cap-subject petitions with requested start dates that are after October 1 of the relevant fiscal year: The final rule eliminates the language relating to a limitation on the requested start date. This is to clarify that petitioners may file H-1B cap subject petitions with requested start dates that are after October 1 of the relevant fiscal year.1

The final rule introduced above becomes effective on March 4, 2024. DHS intends to publish a separate final rule to address the remaining provisions contained in the in the Notice of Proposed Rulemaking published in October 2023.

Visit here for the USCIS’ original announcement on this final rule for the H-1B registration process.

Disclaimer

  1. While the requested start date may be later than October 1, it must be 6 months or less from the date the petitioner files the petition. If the requested start date is more than 6 months after the petitioner files the petition, USCIS will deny or reject the petition. ↩︎

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