Overview of Changes to H1B Lottery System

On Friday, February 2, 2024, the U.S. Department of Homeland Security (DHS) will officially publish a final rule in the Federal Register that is designed to improve the integrity and fairness of the H1B registration system. Notably, the H1B registration process is being altered so that, regardless of how many H1B registrations are submitted for a foreign national, this will not increase the person’s odds of being selected in the H1B lottery. The final also rule will make a few additional modifications to the program, such as start date flexibility. This rule will go into effect for the upcoming fiscal year 2025 (FY2025) H1B registration, which will run from March 6, 2024, through March 22, 2024.

Summary of Key Provisions in Final Rule

Single Entry in Lottery

In many respects, the registration system will continue to operate as it has in years past. A registrant (i.e., a U.S. employer seeking to file an H1B registration) still will be required to submit a separate electronic registration for each cap-subject H1B candidate the company seeks to sponsor for the next fiscal year. And, as before, more than one U.S. employer may submit registrations for the same individual. Under the new rule, however, the foreign national will be limited to no more than a single entry in the lottery system, irrespective of the number of registrations submitted for that individual.

Valid Passport or Travel Document Required

The new lottery system is “beneficiary-centric” and tied to the foreign national’s passport or travel document. To that end, in order to better ensure that no individual has more than a single entry in the lottery system, each foreign national will be required to have a valid passport or travel document. The final rule also prohibits the beneficiary of an H1B registration from being registered under more than one passport or travel document.

All Registrants Notified if Beneficiary is Selected

If an individual beneficiary is selected, all registrants that submitted a registration for that beneficiary will be notified. Each of those registrants then will be eligible to file an H1B petition on behalf of the beneficiary during the filing period.

Flexible Start Date

The final rule also provides flexibility regarding the requested start date of the petition. Rather than requiring the petitioner to request an October 1st start date for selections made in the first round of the lottery, it now generally will be permissible to request any start date of the applicable fiscal year, not to exceed six months beyond the filing date of the petition.

No Fee Increase, Yet

The registration filing fee will remain $10 for the FY2025 H1B registration period. However, the DHS will be increasing nearly all filing fees in April 2024, including the H1B registration fee. So, the registration fee for next year will be $215 per registration.

Conclusion

This final rule should significantly reduce the risk of individuals and employer gaming the system, and hopefully will create a more level playing field. Individuals who qualify for the advanced degree exemption – commonly referred to as the master’s cap – still will have much better odds of being selected in the lottery. Beyond that, the registration system should make the system much closer to being a truly random selection process.

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