In order to prevent fraud and abuse in the annual H-1B visa registration process, the U.S. Department of Homeland Security (DHS) proposed a new rule on October 20 that will ensure a person’s name is entered into the selection process only once, regardless of the number of registrations.
According to a DHS press statement, the proposed rule will change how U.S. Citizenship and Immigration Services (USCIS) conducts the H-1B registration selection process.
At present, the greater the number of registrations submitted on behalf of an individual, the higher the chance that individual will be selected in the lottery.
However, under the new proposal, each individual will be entered into the selection process once, regardless of the number of registrations submitted on their behalf.
A DHS statement said: “This 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. Furthermore, it could also give beneficiaries more choice between legitimate job offers because each registrant who submitted a registration for a selected beneficiary would have the ability to file an H-1B petition on behalf of the beneficiary.”
H-1B visas are temporary work visas, capped annually at 85,000 — 65,000 for foreign skilled workers and 20,000 for foreign students who received an advanced degree from U.S. universities. The visa allow employers to temporarily employ foreign workers in specialty occupations, defined by statute as occupations that require highly specialized knowledge and a bachelor’s or higher degree in the specific specialty.
To meet the need, the H-1B visa follows a lottery process. However, in recent years, according to the USCIS, there has been a significant rise in duplicate filing by individual employees.
The USCIS reported 780,884 H-1B registrations for FY 2024, and registrations for FY 2021 received 274,237, thus raising an alarm, and leading to the investigation. In FY 2022 it received 308, 613 applications, while in FY 2023 it received 483,927 applications.
Emily Neumann, Attorney at Reddy & Neumann, a well-known law firm, welcomed the move. She told indica, “This change eliminates the advantage of submitting multiple registrations for a single individual. It also grants individuals the freedom to choose their employer among multiple job offers if they are selected.”
She explained, “Currently, multiple employers can enter the same individual into the lottery. This increases the chance that the individual will be selected and even results in the individual being selected multiple times. It is possible for one individual to receive several job offers and be entered multiple times. The data showed that groups of companies registered for the same large groups of individuals. Although the companies were all separate entities within the letter of the law, they clearly worked together to increase chances of selection in violation of the spirit of the law.”
Neumann said that there is “no way five separate companies could have made offers to the same 100 individuals without working together.”
“These companies were often found to have family relationships among them, shared office space, used the same IP address to register, used the same FedEx account, etc,” Neumann told indica.
Even though the proposal still allows multiple employers to register the same individual, the individual’s chances would not be unfairly increased. Each individual would have the same chance of selection. If the individual is selected, all employers associated with that individual would be notified of the selection and can file a petition on the individual’s behalf.
“This is a welcome move that still allows multiple legitimate job offers while ensuring everyone has the same chance of selection,” Neumann said.
DHS Secretary Alejandro N. Mayorkas said, “DHS continues to develop and implement regulations that increase efficiency and improve processes for employers and workers navigating the immigration system. The Biden-Harris administration’s priority is to attract global talent, reduce undue burdens on employers, and prevent fraud and abuse in the immigration system.”
The DHS statement said:
“Among additional provisions, the proposed rule would improve the H-1B program by:
Streamlining eligibility requirements — criteria for specialty occupation positions would be revised to reduce confusion between the public and adjudicators and to clarify that a position may allow a range of degrees, although there must be a direct relationship between the required degree field(s) and the duties of the position;
Improving program efficiency — The proposed rule codifies that adjudicators generally should defer to a prior determination when no underlying facts have changed at time of a new filing;
Providing greater benefits and flexibilities for employers and workers — certain exemptions to the H-1B cap would be expanded for certain nonprofit entities or governmental research organizations as well as beneficiaries who are not directly employed by a qualifying organization. DHS would also extend certain flexibilities for students on an F-1 visa when students are seeking to change their status to H-1B. Additionally, DHS would establish new H-1B eligibility requirements for rising entrepreneurs; and
Strengthening integrity measures — in addition to changing the selection process, misuse and fraud in the H-1B registration process would be reduced by prohibiting related entities from submitting multiple registrations for the same beneficiary. The rule would also codify USCIS’ authority to conduct site visits and clarify that refusal to comply with site visits may result in denial or revocation of the petition.”