Significant Changes Impacting FY2025 H-1B Lottery
The H-1B lottery process for professional foreign workers for Fiscal Year 2025 will be different than in prior years. In order to prepare for the highly anticipated lottery, employers will need to be aware of significant changes. On February 2, 2024, the U.S. Citizenship and Immigration Services (USCIS) published a Final Rule intended to improve the H-1B registration selection process by strengthening its integrity and reducing the potential for fraud. USCIS also recently announced the initial registration period dates for the FY2025 H-1B lottery, the launch of USCIS organizational accounts, and fee increases.
WHAT EMPLOYERS SHOULD KNOW REGARDING THE UPCOMING LOTTERY
- The H-1B registration window will be open from noon EST on March 6, 2024, to noon EST on March 22, 2024, and all H-1B registrations must be properly submitted during this window.
- The USCIS will launch new organizational accounts on February 28, 2024. Prior accounts will be upgraded to the new organizational accounts and employers will be using these accounts to file H-1B registrations for this year's lottery season and may also use these accounts to file H-1B petitions online.
- The new beneficiary-centric selection process to promote greater fairness of the H-1B lottery will be implemented for the FY2025 lottery season. The new process will ensure that each beneficiary has the same chance of selection regardless of how many employers submit registrations on their behalf.
- The H-1B registration filing fee remains $10.
- The H-1B filing fees will increase on April 1, 2024.
H-1B NUMBERS
Employers compete for 85,000 H-1B cap numbers that are available each federal fiscal year for foreign national professionals in specialty occupations. This includes 65,000 under the "Regular Cap" plus an additional 20,000 under the “Master’s Cap,” reserved for beneficiaries holding U.S. advanced degrees. The demand for H-1B cap numbers substantially exceeds the supply. For the FY2024 lottery, USCIS received 780,884 H-1B registrations, which was the highest number on record and more than a 60% increase from the prior year's record. Notably, 408,891 registrations were for beneficiaries who had registrations submitted on their behalf by multiple different employers. This raised concerns that some beneficiaries had an unfair advantage and triggered this year's changes with the goal of preventing fraud or manipulation of the registration system.
THE H-1B REGISTRATION FINAL RULE SIGNIFICANT CHANGES
- Creates a beneficiary-centric selection process for H-1B registrations. Each registered beneficiary is entered into the lottery selection process once even when multiple registrations are submitted on the beneficiary's behalf. One beneficiary equals one lottery entry, with the registration entry tied to the beneficiary's passport or valid travel document. This change should establish a level playing field for all beneficiaries and prevent an advantage for beneficiaries of multiple registrations. As a result, we anticipate the selection odds to be better this year as compared to the FY2024 lottery.
- Clarifies that the requested employment start date on certain cap-subject H-1B petitions can be after October 1 of the relevant fiscal year, as long as the requested start date is within six months of the filing date.
- Codifies USCIS's ability to deny or revoke H-1B petitions based on registrations with false attestations.
FY2025 H-1B REGISTRATION PERIOD
The initial registration period for the FY2025 H-1B lottery will open on March 6, 2024, at noon EST and close on March 22, 2024, at noon EST. Only during this time, non-exempt U.S. employers may submit electronic H-1B lottery registrations through their USCIS organizational online accounts.
After the registration window closes on March 22, 2024, USCIS will conduct a random H-1B lottery among submitted registrations and will notify registrants with selected registrations by March 31, 2024. We anticipate that notifications may start arriving by Saturday morning, March 23, 2024. Once notified of an H-1B registration selection, employers will have 90 days to file an H-1B petition with USCIS, between April 1, 2024, and June 30, 2024.
ORGANIZATIONAL ACCOUNTS, ONLINE H-1B FILINGS, & NEW EDITION OF FORM I-129
On February 28, 2024, USCIS will launch the new organizational accounts in the USCIS online portal that will allow multiple people within an organization and their legal representatives to jointly prepare and submit H-1B registrations and H-1B petitions. Employers with previous myUSCIS accounts will be able to merge their existing accounts to an organizational account. USCIS will begin accepting online filings for H-1B petitions and associated premium processing requests on April 1, 2024. Concurrent dependent H-4 filings for family members cannot be filed online. Paper filing will still be accepted.
Additionally, petitioners will need to use a new edition of Form I-129, Petition for a Nonimmigrant Worker, for filings postmarked on or after April 1, 2024. There will be no grace period and only the 04/01/24 edition of Form I-129 will be accepted.
REGISTRATION AND FILING USCIS FEES
USCIS also announced the Fee Schedule Final Rule. Any benefit request postmarked on or after April 1, 2024, must be accompanied with the fees established by this Final Rule. Because the Final Rule takes effect after the lottery window, the H-1B registration fee will remain $10 this year and will increase to $215 next year. However, the Final Rule will impact H-1B filing fees for FY2025 cap-subject petitions. The H-1B filing fee will increase from $460 to $780, and there will be a new $600 Asylum Program fee for most employers. (The H-1B filing fee will remain $460 for nonprofits and small employers. Nonprofit petitioners will also be exempt from the Asylum Program fee and small employers will pay a reduced fee of $300.) The American Competitiveness and Workforce Improvement Act fee of $1,500 ($750 for companies with fewer than 25 employees) and $500 fraud prevention fee will remain in place.
As the H-1B registration window is fast approaching, right now is the prime time for employers to identify foreign national employees they may wish to register for this year's lottery.
RECOMMENDED NEXT STEPS
We recommend employers review their roster of foreign national employees focusing on:
- Employees who are foreign students employed pursuant to Curricular Practical Training (CPT) or Optional Practical Training (OPT) (even if they have a year or two of science, technology, engineering, and mathematics (STEM) OPT left, we recommend applying annually to increase odds of selection).
- Employees in other nonimmigrant statuses (L-1, TN, dependent L-2, H-4, etc.) that expire before October 1, 2025 (which will be your next opportunity to sponsor cap-subject H-1Bs).
- Employees currently abroad whom an employer may wish to employ in the U.S.
- Former employees you would like to bring back and potential new hires.
Considering the number of immediate changes, we recommend that employers seek competent legal guidance in navigating the H-1B registration and filing processes.
For more information on the H-1B registration process and filing H-1B petitions, please contact Volha (Olga) Andreyeva, Elizabeth Chatham, Brad Sandler, Renée Mueller Steinle, Jonathan Sturtz or the Stinson LLP contact with whom you regularly work.
