The Department of Homeland Security (DHS) recently announced updates to the H-1B visa lottery process, availability of online H-1B filings, and increases to most U.S. Citizenship and Immigration Services (USCIS) petition filing fees. The H-1B visa lottery and online filing changes will go into effect before the next lottery opens on March 6, 2024, and the fee increase begin on April 1, 2024.
H-1B Visa Lottery Changes
On October 23, 2023, the Biden administration published a Proposed Rule to implement sweeping changes aimed at modernizing and streamlining the H-1B system. It included controversial provisions to tighten the definition of “specialty occupations” for H-1B applicants and to increase government audit authority for DHS, among other provisions, but also included changes to modernize the H-1B lottery registration process system and increase flexibilities for certain H-1B beneficiaries.
On February 2, 2024, DHS issued a Final Rule entitled “Improving the H-1B Registration Selection Process and Program Integrity” which bifurcates the October 2023 Proposed Rule and implements only several of the less controversial provisions. In the Final Rule, DHS explains that it intends to address a number of other provisions in the October Proposed Rule at a later date.
The Final Rule includes the following provisions that will be implemented prior to this March’s H-1B lottery:
- Implementation of a beneficiary-centric H-1B registration selection process whereby each beneficiary (employee) may only be selected once in each lottery, as opposed to past lotteries which allowed a beneficiary to be selected multiple times if multiple employers submitted registrations for the same beneficiary.
- Start date flexibility for certain cap-subject H-1B petitions that prefer start dates after October 1 of the relevant fiscal year.
- H-1B integrity measures requiring inclusion of a beneficiary’s valid passport or travel document information in the lottery registration and increasing DHS authority to deny a petition where statements on the petition, registration, or LCA are fraudulent.
FY 2025 H-1B Cap Registration – “The H-1B Lottery”
USCIS recently announced that the initial registration period for the FY 2025 H-1B cap will open at noon Eastern on March 6, 2024, and run through noon Eastern on March 22, 2024. Following closure of the registration period, USCIS will run a random, electronic lottery to select this year’s H-1B applicants. By way of background, this online registration process will only impact new H-1B visas subject to the annual quota or “cap” of 65,000 visas (Regular cap) and an additional cap of 20,000 H-1B visas available for “specialty worker” beneficiaries with advanced degrees from US colleges or universities (US Masters cap). Moreover, H-1B petitions filed by institutions of higher education, or a related or affiliated nonprofit entity, and those filed by nonprofit or governmental research organization, are exempt from the H-1B cap.
Employers seeking H-1B workers for this year’s lottery (for terms of employment starting on October 1, 2024) will complete an online registration form that solicits basic data about the company and the prospective H-1B employee/beneficiary (including whether he or she holds a qualifying advanced degree) and pay $10 registration fee for each beneficiary. Employers will file a separate registration for each proposed H-1B worker and, per current rules, employers are prohibited from submitting more than one registration per H-1B worker.
H-1B Online Organizational Account Creation
USCIS also announced the creation of online “organizational accounts” that will go live on February 28, 2024 and will be incorporated into this March’s H-1B registration process. Organizational accounts will allow petitioning employers and legal representatives to create, review, and submit H-1B lottery registrations, H-1B petitions, and premium processing forms, entirely online.
The new, optional online ecosystem will allow petitioners to move the entire H-1B process to a digital format, whereas H-1Bs and most other USCIS petitions are currently filed on paper, then uploaded at USCIS Processing Centers. Correspondence related to Requests for Evidence, approvals, denials, or other matters related to the case is also currently conducted in hard copy and will shift to the online accounts. The new system is a bold move towards full digitization of immigration processes that has long been the goal of DHS.
USCIS Fee Increases
USCIS is set to implement a sweeping filing fee increase for most visa petition categories, with most increases going into effect on April 1, 2024, along with revised form versions for many of the same categories. USCIS is a fee-based organization, its budget mainly comes from filing fees, not from Congressional appropriations. As a result, USCIS claims these fee increases are necessary to cover longstanding, multi-million-dollar budgetary shortcomings.
Examples of common filing fee increases include:
- Form I-129 L petitions increase from $460 to $1,385
- Form I-129 O petitions increase from $460 to $1,055
- Form I-539 dependent applications increase from $370 to $470
- Form I-140 Immigrant Visa Petitions increase from $700 to $715
- Form I-485 Adjust Status applications increase from $1,140 to $1,440
- Form I-765 Applications for Employment Authorization increase from $410 up to $520
A blanket $600 fee to cover ballooning asylum administration costs (Asylum Program Fee/APF) will also apply to most employer-filed petitions utilizing Form I-129. Exceptions to H-1B increases and the APF are available for certain small employers (less than 25 full-time employees) and nonprofits. The H-1B lottery registration fee increase from $10 to $215 will not go into effect until the H-1B lottery held in March 2025.
On a related note, USCIS previously announced the publication of a final rule adjusting the premium processing fees, which will increase filing fees for Form I-907, effective February 26, 2024. For H-1B and other nonimmigrant visa petitions filed via Form I-129, the premium processing fee will be increased from $2,500 to $2,805.
Squire Patton Boggs will continue to monitor and provide updates on these developments. Please reach out to your SPB contacts for further assistance.