On February 2, 2024 USCIS published a final rule effective March 4, 2024, titled Improving the H-1B Registration Selection Process and Program Integrity. Read the final rule published at 89 FR 7456 (February 2, 2024). The rule:
- Creates a new H-1B registration selection protocol for H-1B cap-subject employers. Under the new process USCIS will identify beneficiaries based on their passport information and these unique beneficiaries will then be entered into the selection process (lottery) once, regardless of how many registrations are submitted on their behalf. Previously, USCIS entered all registrations in the lottery, so the more registrations submitted the greater the likelihood of being selected. DHS anticipates that this “beneficiary centric” system will increase chances for selection in the lottery by helping to ensure that each beneficiary has the same chance of being selected.
- Eliminates the requirement that the requested start date on a cap-subject H-1B petition be the first day of the applicable fiscal year (October 1). This will reduce confusion on what start date to put on an H-1B petition when the petition filing period extends beyond October 1 of the applicable fiscal year.
- However, the October 23, 2023 proposal to allow a requested start date other than an October 1 start date to qualify an F-1 student for cap-gap benefits was not implemented in this limited final rule, so until that proposal is finalized an October 1 start date must still be requested for F-1 cap-gap purposes.
- Adds several registration related integrity measures, including:
- "Requiring registrations to include the beneficiary's valid passport information or valid travel document information, and prohibiting a beneficiary from being registered under more than one passport or travel document."
- "Codifying USCIS' ability to deny H–1B petitions or revoke an approved H–1B petition where: 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 the H–1B cap-subject petition was not based on a valid registration." - "Codifying USCIS' authority to deny an H petition where the statements on the petition, H–1B registration, labor condition application (LCA), or temporary labor certification (TLC), as applicable, were inaccurate, fraudulent, or misrepresented a material fact, including if the attestations on the H–1B registration are determined to be false."
- "Codifying USCIS' ability to revoke an approved H petition where the statements on the petition, H–1B registration, TLC, or the LCA, as applicable, were inaccurate, fraudulent, or misrepresented a material fact, including if the attestations on the H–1B registration are determined to be false."
This final rule implements several proposals included in the October 23, 2023 proposed rule titled Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers. See NAFSA's page on the full proposed rule. DHS noted in the preamble to the proposed rule that it "intends to finalize the proposals contained in this rulemaking through one or more final rules, depending on agency resources." And so, unlike traditional proposed rules, not all proposals in the proposed rule will become final rules at the same time.
The February 2, 2024 final rule on Improving the H-1B Registration Selection Process and Program Integrity featured on this page enacts only that limited portion of the October 23, 2023 proposals. Other changes proposed in the October 23, 2023 proposed rule, such as those regarding the definition of specialty occupation, F-1/H-1B Cap-Gap Flexibility, etc. are not part of the February 2, 2024 final rule.