USCIS Makes Changes to H-1B Lottery Process to Improve Program Integrity | Harter Secrest & Emery LLP (2024)

USCIS has published a final rule which alters the method of counting H-1B lottery entries for this year’s H-1B lottery running March 6 to March 22, 2024. In previous years, USCIS conducted the lottery based on the total number of H-1B employer registrations submitted – including multiple registrations submitted for the same beneficiary by different employers. Going forward, USCIS will run the lottery based on the number of “unique” beneficiaries – counting each beneficiary only once. This change is being implemented to strengthen the integrity of the H-1B lottery system and improve fairness in the selection process.

New Beneficiary-Centered Selection Process

USCIS will now select lottery registrations by “unique” beneficiary, as identified by their valid passport or travel document information. Beneficiaries who are selected will only be counted once for purposes of the annual H-1B numerical cap, regardless of how many employers submitted registrations for that beneficiary.

This change still allows for multiple employers to register the same beneficiary with the same passport or travel document information in the H-1B lottery,but it removes the previously existing numerical advantage of multiple registrations for the same beneficiary. In other words: Previously, the more registrations a beneficiary had filed on their behalf by multiple employers, the higher the beneficiary’s chance of winning a lottery spot was, comparable to having multiple lottery tickets. Now, the same beneficiary for whom multiple employers filed a registration only gets one lottery ticket.

When a beneficiary with multiple employer registrations is selected in the lottery, each employer who filed a registration will be notified and can then file an H-1B petition on behalf of that beneficiary. However, employers willnotbe notified of whether there are other employers who may submit an H-1B petition for the same beneficiary. Hence, while this system gives winning beneficiaries greater autonomy to choose with which employer to ultimately work, employers should be mindful of the possibility of H-1B filings by other petitioners for the same beneficiary. That same beneficiary may commence work under any of the approved H-1B petitions, regardless of the order of filing or approval.

Note that there are two important aspects about passport information: (1) A beneficiary with passports from different countries must use the same passport for all registrations; and (2) multiple employers each submitting a registration for the same beneficiary must use the same passport information. Use of different passport information for the same beneficiary could lead to denial or revocation of the registration, selection of, or subsequent petition for that beneficiary.

The Need for Change

Last year, there were more than 758,000 registrations in the H-1B lottery for the 85,000 total spots available and more than half of those were registrations for individuals with multiple employers submitting an H-1B lottery registration for the same individual. This greatly diluted the chances for beneficiaries with only one employer to win the lottery and for their employer to be able to file an H-1B petition. The new beneficiary-centered selection process should improve the odds of an individual winning a spot in the H-1B lottery, because the pool of entries on which the lottery is run is smaller.

Employer and Beneficiary Next Steps

Employers who plan to submit H-1B lottery registrations should work closely with their immigration counsel to ensure compliance with this new process. In particular:

• Employers should ask their lottery entrants to provide a copy of their valid passport or travel document ID page for the registration process. Any H-1B petitionsubsequentlyfiled on their behalf must contain the same identifying information. There is some room for changes that are in the discretion of USCIS, such as a change in passport number after registration.
• Corporate groups that plan to have more than one related entity file an H-1B petition on behalf of the same beneficiary should do so with caution and only with the guidance of immigration counsel. While multiple H-1B lotteryregistrationsby related entities are permissible, multiple H-1Bsubmissions by such related entities without a legitimate business reason, i.e., simply to improve the chance of an H-1B petition approval, could result in increased scrutiny of the petitioners and petition denial by USCIS.

The H-1B lottery process is a significant step in allowing foreign national talent, in particular students, to begin or continue employment for potentially many years and possibly with a path towards permanent residence.

Further Information

The Immigration Practice Group is monitoring H-1B lottery developments closely. More information about this year’s H-1B lottery and the newly announced USCIS organizational accounts can be read on our previously publishedLEGALCurrent here. To read more about the H-1B lottery generally, see our previously publishedLEGALCurrent here. Please contact any member of ourImmigration Practice Groupif you have any questions regarding the increased filing fees or other provisions right away.