USCIS To Address Abuse of H-1B Lottery Registration System; Second Selection Round Possible
Allegations of fraud and abuse accompanied the recently published U.S. Citizenship and Immigration Services (USCIS) statistics from the Fiscal Year 2024 H-1B Cap Lottery Registration System. The system is used to allocate the annual H-1B visa quota, known as the “cap,” due to perennial excess demand or “oversubscription.”
As background, USCIS implemented a cap lottery registration system for Fiscal Year 2021 and has continued its use to the present. The registration system replaced the previous H-1B cap lottery process which allocated H-1B visa numbers based upon the filing of complete H-1B petitions with USCIS in the first week of April. The abbreviated registration process and nominal $10 registration cost under the new system decreased the effort and cost to enter the lottery for an H-1B visa number significantly. In an effort toward efficiency and streamlining, employers are able to enter the lottery by attesting to the existence of a bona fide job opportunity for a qualifying “specialty occupation.” They are no longer required to fully document these requirements by filing an actual petition and supporting documents with USCIS unless and until their lottery entry is selected.
The H-1B cap lottery requires companies to submit a registration containing the name and other identifying information for each individual the company wishes to sponsor. USCIS regulations disallow multiple registrations of the same person by the same employer in the same fiscal year. It is permissible for multiple employers to enter registrations for the same beneficiary if both employers have bona fide offers of employment. That is, if an individual has genuine job offers from two different, unrelated, companies, both companies can submit registrations in the same fiscal year. However, with limited exception, it is not permissible for two related companies to file for the same foreign national. This prohibition extends to companies found to be coordinating as part of a scheme to increase the chances of selection by working together to register the same person multiple times.
Reducing the cost and effort to enter the H-1B visa lottery—a lottery necessitated due to demand for H-1B visas exceeding supply– had the foreseeable effect of driving demand even higher. The number of registrations under the system has increased year over year since implementation of the $10 simplified registration system. However, the upward trend in demand did not account for the Fiscal Year 2024 lottery registration volume.
The increase in demand during registration for Fiscal Year 2024 was shocking. There were 483,927 total registrations for Fiscal Year 2023, which took place in March 2022. By comparison, in March 2023, USCIS received 780,884 for Fiscal Year 2024. Moreover, there was more than a 100% increase in the number of registrations for beneficiaries who had multiple registrations. The number with multiple registrations for 2023 was 165,180, while the number with multiple registrations for 2024 was 408,891.
Even before USCIS released registration data, immigration practitioners knew something was amiss based upon abysmally low lottery selection rates. USCIS has indicated the increase in multiple registrations was so significant that it raised concerns that the system is being abused to unfairly increase the chances of selection. USCIS has said, “Based on evidence from the FY (Fiscal Year) 2023 and FY 2024 H-1B cap season, USCIS has already undertaken extensive fraud investigations, denied and revoked petitions accordingly, and is in the process of initiating law enforcement referrals for criminal prosecution.”
Due to the problems with the current system, USCIS has begun reevaluating the registration process and plans to propose changes to address and reduce misuse and fraud in the registration system. Further, some have speculated that USCIS may conduct another selection for the upcoming Fiscal Year if needed to select petitions to replace those that have been denied or revoked due to suspected fraud. If this occurs, the new lottery selection will be made from the registrations submitted in March 2023 which were not previously selected. Employers do not need to take any action for their registrations to be considered in any new selection for Fiscal Year 2024. As always, Foster will continue to monitor USCIS updates concerning the H-1B lottery and will make future updates available on the Foster website at www.fosterglobal.com.