Proposed H-1B rule: Each individual to be entered once to curb gaming of lottery system

Under the proposal, each unique individual who has a registration submitted on his/her behalf (the beneficiary) would be entered into the selection process only once, regardless of the number of registrations submitted on his/her behalf.
DHS, in its release, explains that the proposed change would improve the chances that a legitimate registration would be selected, by significantly reducing or eliminating the advantage of submitting multiple registrations for the same beneficiary solely to increase the chances of selection. Under the current process, the more registrations that are submitted on behalf of an individual, the higher chance that individual will be selected in a lottery.

For the H-1B cap season for the fiscal year commencing October 1, 2023, USCIS had received 7,58,994 eligible registrations – this was a rise of 60% over last year’s eligible registration pool. In the backdrop of these statistics, the agency in April had expressed concerns of misuse of the H-1B visa program. “The large number of eligible registrations for beneficiaries with multiple eligible registrations – much larger than in previous years, has raised serious concerns that some may have tried to gain an unfair advantage by working together to submit multiple registrations on behalf of the same beneficiary. This may have unfairly increased their chances of selection,” it has stated.
A cleaning up operation had led to rejection of several applications and USCIS had to hold a second lottery to meet the annual quota of 85,000 (including the Masters cap of 20,000 visas that are allotted to those beneficiaries having advanced degrees from US universities).

In 2019, USCIS had introduced the current H-1B cap E-registration process against a fee of $10 per registration. Under it, sponsoring employers are required to electronically register the beneficiaries (employees whom they wish to hire under the H-1B route). H-1B cap applications are then required to be filed only for those beneficiaries selected in the lottery process. Unfortunately, this subsequently led to a plethora of E-registrations and USCIS detected multiple-filing-frauds.
A lawsuit filed in 2021 by nearly 500 foreign nationals who were not selected in the lottery had pointed out that the E-registration process currently permits foreign nationals to have a limitless number of registrations submitted on their behalf by multiple employers. This has led to an entire industry of so-called ‘H-1B consultancies and phony employers who have exploited the flawed cap registration rules by charging prospective workers to file multiple registrations on their behalf, even when there is no bona fide job offer from a qualifying employer. The case was dismissed, as remedial steps to ensure a fair system were to be undertaken.
Greg Siskind, co-founder of Siskind Susser, an immigration law firm, who was one of the attorneys representing this lawsuit is pleased with the proposal. He says, “The H-1B lottery has been a massive scam for the last few years. Applicants can game their chances by having multiple employers file for them. Employers have been working together along with middlemen to file multiple applications on behalf of the same person. If a person found 10 employers to file for them, they improve their odds 1000%. I had suggested flipping the algorithm, making it a beneficiary lottery and count beneficiaries only once. And when someone wins, if they have multiple job offers, the beneficiary gets to pick the employer if there were multiple registrations. That has the additional happy result of giving workers some additional bargaining power.”

It is also a win for the employee group. Steven Brown, partner with the immigration law firm of Reddy & Neumann adds, “If a beneficiary were to be selected, each registrant (company) that registered for that beneficiary would be notified of selection and would be eligible to file a petition on that beneficiary’s behalf. This would shift to reducing the benefit of having multiple registrations in the lottery as each individual is only entered once. But it also gives beneficiaries some autonomy in choosing their employer if they are selected and have multiple job offers.”
According to Mitch Wexler, partner at Fragomen, a global immigration law firm, “The agency is also seeking to codify its authority to deny or revoke an H-1B petition if the underlying registration contained a false attestation or was otherwise invalid.”
Kripa Upadhyay, US based immigration attorney said that the agency is again making it clear that companies who collude to file multiple applications for the same candidates will be prosecuted.
The proposal will be published in the Federal Register on October 23, to be followed by a 60-day open period for inviting public comments. The rules are to be subsequently finalised and implemented. As USCIS has indicated that the H-1B cap anti-fraud provisions are a priority, these may be the first to be finalised. It is likely that the forthcoming H-1B cap filing season for the fiscal beginning October 1, 2024, which will open in the first quarter of 2024 will be subject to the new norms.