Rule2024-01770
Improving the H-1B Registration Selection Process and Program Integrity
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
February 2, 2024
Effective
March 4, 2024
Issuing agencies
Homeland Security Department
Abstract
The U.S. Department of Homeland Security (DHS) is amending its regulations to implement the proposed beneficiary centric selection process for H-1B registrations, provide start date flexibility for certain H-1B cap-subject petitions, and implement additional integrity measures related to H-1B registration.
Full Text
<html>
<head>
<title>Federal Register, Volume 89 Issue 23 (Friday, February 2, 2024)</title>
</head>
<body><pre>
[Federal Register Volume 89, Number 23 (Friday, February 2, 2024)]
[Rules and Regulations]
[Pages 7456-7494]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-01770]
[[Page 7455]]
Vol. 89
Friday,
No. 23
February 2, 2024
Part II
Department of Homeland Security
-----------------------------------------------------------------------
8 CFR Part 214
Improving the H-1B Registration Selection Process and Program
Integrity; Final Rule
Federal Register / Vol. 89 , No. 23 / Friday, February 2, 2024 /
Rules and Regulations
[[Page 7456]]
-----------------------------------------------------------------------
DEPARTMENT OF HOMELAND SECURITY
8 CFR Part 214
[CIS No. 2766-24; DHS Docket No. USCIS-2023-0005]
RIN 1615-AC70
Improving the H-1B Registration Selection Process and Program
Integrity
AGENCY: U.S. Citizenship and Immigration Services, DHS.
ACTION: Final rulemaking.
-----------------------------------------------------------------------
SUMMARY: The U.S. Department of Homeland Security (DHS) is amending its
regulations to implement the proposed beneficiary centric selection
process for H-1B registrations, provide start date flexibility for
certain H-1B cap-subject petitions, and implement additional integrity
measures related to H-1B registration.
DATES: This final rule is effective March 4, 2024.
FOR FURTHER INFORMATION CONTACT: Charles L. Nimick, Chief, Business and
Foreign Workers Division, Office of Policy and Strategy, U.S.
Citizenship and Immigration Services, U.S. Department of Homeland
Security, 5900 Capital Gateway Drive, Camp Springs, MD 20746; telephone
(240) 721-3000.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Executive Summary
A. Purpose and Summary of the Regulatory Action
B. Summary of Costs and Benefits
C. Summary of Changes From the Notice of Proposed Rulemaking
II. Background
A. Legal Authority
B. Background on H-1B Registration
C. The Need for Regulatory Action
D. Final Rule and Implementation
III. Public Comments on the Proposed Rule
A. Summary of Public Comments
B. Statutory and Legal Issues Related to Registration and
Background
1. DHS/USCIS Legal Authority Related to Registration
2. Background and Data on the Current Registration System
C. Beneficiary Centric Selection
1. General Support
2. General Opposition
3. Identifying Information and Passport Requirement
4. Implementation and Effective Date
5. Other Comments on the Beneficiary Centric Selection Process
D. Start Date Flexibility for Certain H-1B Cap-Subject Petitions
E. Registration Related Integrity Measures
1. Bar on Multiple Registrations Submitted by Related Entities
2. Registrations With False Information or That Are Otherwise
Invalid
3. Other Comments and Alternatives to Anti-Fraud Measures
Related to Registration
F. Other Comments Related to the Proposed Registration System
1. Electronic Registration v. Paper-Based Filing
2. Comments on Fees Related to Registration
3. Other Comments and Alternatives Related to Registration
IV. Severability
V. Statutory and Regulatory Requirements
A. Executive Order 12866 (Regulatory Planning and Review) and
Executive Order 13563 (Improving Regulation and Regulatory Review)
B. Regulatory Flexibility Act (RFA)
C. Unfunded Mandates Reform Act of 1995 (UMRA)
D. Congressional Review Act
E. Executive Order 13132 (Federalism)
F. Executive Order 12988 (Civil Justice Reform)
G. Executive Order 13175 (Consultation and Coordination With
Indian Tribal Governments)
H. National Environmental Policy Act (NEPA)
I. Paperwork Reduction Act (PRA)
Table of Abbreviations
CFR--Code of Federal Regulations
CPI-U--Consumer Price Index for All Urban Consumers
DHS--U.S. Department of Homeland Security
DOL--U.S. Department of Labor
FR--Federal Register
FY--Fiscal Year
HR--Human Resources
HSA--Homeland Security Act of 2002
IMMACT 90--Immigration Act of 1990
INA--Immigration and Nationality Act
LCA--Labor Condition Application
NEPA--National Environmental Policy Act
NPRM--Notice of Proposed Rulemaking
OMB--Office of Management and Budget
PRA--Paperwork Reduction Act
PRD--Policy Research Division
Pub. L.--Public Law
RFA--Regulatory Flexibility Act of 1980
RIA--Regulatory Impact Analysis
Stat.--U.S. Statutes at Large
TLC--Temporary Labor Certification
UMRA--Unfunded Mandates Reform Act
U.S.C.--United States Code
USCIS--U.S. Citizenship and Immigration Services
I. Executive Summary
DHS is amending its regulations relating to the H-1B registration
selection process. This final rule implements a beneficiary centric
selection process for H-1B registrations, start date flexibility for
certain H-1B cap-subject petitions, and integrity measures related to
H-1B registration. These provisions are being codified at new 8 CFR
214.2(h)(8)(iii)(A), (h)(8)(iii)(D), (h)(8)(iii)(E), (h)(10)(ii),
(h)(10)(iii), and (h)(11)(iii)(A). At this time, DHS is not finalizing
other provisions of the ``Modernizing H-1B Requirements, Providing
Flexibility in the F-1 Program, and Program Improvements Affecting
Other Nonimmigrant Workers,'' Notice of Proposed Rulemaking (NPRM),
published in the Federal Register on October 23, 2023 (October 23
NPRM).
A. Purpose and Summary of the Regulatory Action
The purpose of this rulemaking is to improve the H-1B registration
selection process. Through this rule, DHS is implementing a beneficiary
centric selection process for H-1B registrations. Instead of selecting
by registration, U.S. Citizenship and Immigration Services (USCIS) will
select registrations by unique beneficiary. Each unique beneficiary who
has a registration submitted on their behalf will be entered into the
selection process once, regardless of how many registrations are
submitted on their behalf. If a beneficiary is selected, each
registrant that submitted a registration on that beneficiary's behalf
will be notified of the beneficiary's selection and will be eligible to
file a petition on that beneficiary's behalf during the applicable
petition filing period. See new 8 CFR 214.2(h)(8)(iii)(A)(1) and (4).
DHS anticipates that changing to a beneficiary centric selection
process for H-1B registrations will reduce the potential for gaming the
process to increase chances for selection and help ensure that each
beneficiary has the same chance of being selected, regardless of how
many registrations are submitted on their behalf.
DHS will also provide start date flexibility for certain H-1B cap-
subject petitions. DHS is clarifying the requirements regarding the
requested employment start date on H-1B cap-subject petitions to permit
filing with requested start dates that are after October 1 of the
relevant fiscal year, consistent with current USCIS policy, by removing
the current regulatory text at 8 CFR 214.2(h)(8)(iii)(A)(4).
Additionally, DHS is implementing integrity measures related to the
H-1B registration process, 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. See new 8 CFR
214.2(h)(8)(iii)(A)(4). DHS is also 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
[[Page 7457]]
information as stated in the petition; the underlying registration
contained a false attestation or was otherwise invalid; the
registration fee was invalid; or where the H-1B cap-subject petition
was not based on a valid registration. See new 8 CFR
214.2(h)(8)(iii)(A) and (D). In addition, DHS is also further 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. See
new 8 CFR 214.2(h)(10)(ii)-(iii). Finally, DHS is 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.
See new 8 CFR 214.2(h)(11)(iii)(A).
B. Summary of Costs and Benefits
The purpose of this rulemaking is to improve the H-1B registration
selection process. For the 10-year period of analysis of the final
rule, DHS estimates the annualized net cost savings of this rulemaking
will be $2,199,374 annualized at 3 percent and 7 percent. Table 1
provides a more detailed summary of the final rule provisions and their
impacts.
C. Summary of Changes From the Notice of Proposed Rulemaking
Following careful consideration of public comments received, this
final rule adopts some of the provisions proposed in the October 23
NPRM, with some changes as described below.
Passport or Travel Document Requirement
DHS will make a modification to the proposed passport requirement
to specify that registrations must include the beneficiary's valid
passport or valid travel document. See new 8 CFR
214.2(h)(8)(iii)(A)(4)(ii) and (D)(1). As proposed in the NPRM, 8 CFR
214.2(h)(8)(iii)(A)(4)(ii) would have required the registration to
include the beneficiary's valid passport information and would not have
provided an exception to the passport requirement. However, after
considering public comments expressing concern for stateless
individuals, refugees, and others who are unable to obtain valid
passports, DHS has decided to modify new 8 CFR
214.2(h)(8)(iii)(A)(4)(ii) so that the registration must include the
beneficiary's valid passport information or valid travel document
information. Requiring the beneficiary's valid passport information or
valid travel document information at the registration stage would align
with the current Form I-129 which asks for the beneficiary's ``passport
or travel document.'' This modification to allow for a valid travel
document is intended to narrowly accommodate stateless individuals,
refugees, and others who are unable to obtain valid passports, and is
directly in response to public comments expressing concerns for these
populations. The travel document must be the travel document that the
beneficiary, if or when abroad, intends to use to enter the United
States if issued an H-1B visa. See new 8 CFR
214.2(h)(8)(iii)(A)(4)(ii). Therefore, the travel document must be
valid for the entry of the bearer into the United States. An example of
a valid travel document includes one of the travel documents listed in
the Department of State's reciprocity schedule.\1\ DHS is also
modifying this provision by adding ``or when'' to the phrase ``if
abroad.'' This modification is intended to clarify that the passport or
travel document must be the same passport or travel document that the
beneficiary intends to use to enter the United States, whether the
beneficiary is abroad at time of registration or in the United States
at the time of registration and will subsequently depart to obtain an
H-1B visa and return to the United States to request admission as an H-
1B nonimmigrant.
---------------------------------------------------------------------------
\1\ The Department of State website shows visa reciprocity by
country. To view the Reciprocity Page for a country of nationality,
select the country/area of authority from the list of countries on
the left side menu. On the country's Reciprocity Page, select
``Passports & Other Travel Documents.'' Department of State, U.S.
Visa: Reciprocity and Civil Documents by Country, <a href="https://travel.state.gov/content/travel/en/us-visas/Visa-Reciprocity-and-Civil-Documents-by-Country.html">https://travel.state.gov/content/travel/en/us-visas/Visa-Reciprocity-and-Civil-Documents-by-Country.html</a>.
---------------------------------------------------------------------------
Under new 8 CFR 214.2(h)(8)(iii)(A)(4)(ii), each beneficiary may
only be registered under one passport or travel document. Under new 8
CFR 214.2(h)(8)(iii)(A)(2), if USCIS determines that registrations are
submitted by either the same or different prospective petitioners for
the same beneficiary, but using different identifying information,
USCIS may find those registrations invalid and deny or revoke the
approval of any H-1B petition filed based on those registrations.
Additionally, any H-1B petition filed on behalf of a beneficiary must
contain and be supported by the same identifying information provided
in the selected registration, and petitioners must submit evidence of
the passport or travel document used at the time of registration to
identify the beneficiary under new 8 CFR 214.2(h)(8)(iii)(D)(1). Such
evidence may include a copy of the passport or travel document,
consistent with current practice. In its discretion, USCIS may find
that a change in identifying information in some circumstances would be
permissible. Such circumstances could include, but are not limited to,
a legal name change due to marriage, change in gender identity, or a
change in passport number or expiration date due to renewal or
replacement of a stolen passport, in between the time of registration
and filing the petition. USCIS may deny or revoke an H-1B petition that
does not meet these requirements. See new 8 CFR 214.2(h)(8)(iii)(D)(1).
Multiple Registrations by Related Entities
DHS will not finalize the proposed change at 8 CFR
214.2(h)(2)(i)(G) to prohibit related entities from submitting multiple
registrations for the same individual at this time. DHS will address
and may finalize this proposed provision in a subsequent final rule.
However, the submission of multiple registrations for the same
individual by related entities should not increase the chances of
selection given the finalization of the proposal to have USCIS select
registrations by unique beneficiary. See new 8 CFR
214.2(h)(8)(iii)(A)(1) and (4).
Severability
DHS is adding new regulatory text on severability at 8 CFR
214.2(h)(8)(v)(B) and redesignating the severability clause at
paragraph (h)(8)(v) as new paragraph (h)(8)(v)(A). While severability
was discussed in the NPRM, it was only discussed in the preamble and
there was no proposed regulatory text.
Other Changes From the NPRM
DHS is also amending the proposed regulatory text at 8 CFR
214.2(h)(8)(iii)(A)(4) to state, ``A petitioner may file an H-1B cap-
subject petition on behalf of a registered beneficiary only after their
properly submitted registration for that beneficiary has been selected
for that fiscal year.'' The only change from the NPRM is changing ``a''
to ``their'' before ``properly submitted registration.'' DHS is making
this change to eliminate any confusion that the petitioner listed on
the H-1B petition must be the same as, or a successor in interest to,
the prospective petitioner listed on the registration that was
selected.
[[Page 7458]]
II. Background
A. Legal Authority
The Secretary of Homeland Security's authority for these regulatory
amendments is found in various sections of the Immigration and
Nationality Act (INA or the Act), 8 U.S.C. 1101 et seq., and the
Homeland Security Act of 2002 (HSA), Pub. L. 107-296, 116 Stat. 2135, 6
U.S.C. 101 et seq. General authority for issuing this rule is found in
section 103(a) of the INA, 8 U.S.C. 1103(a), which authorizes the
Secretary to administer and enforce the immigration and nationality
laws and establish such regulations as the Secretary deems necessary
for carrying out such authority, as well as section 102 of the HSA, 6
U.S.C. 112, which vests all of the functions of DHS in the Secretary
and authorizes the Secretary to issue regulations.\2\ Further authority
for these regulatory amendments is found in:
---------------------------------------------------------------------------
\2\ Although several provisions of the INA discussed in this
NPRM refer exclusively to the ``Attorney General,'' such provisions
are now to be read as referring to the Secretary of Homeland
Security by operation of the HSA. See 6 U.S.C. 202(3), 251, 271(b),
542 note, 557; 8 U.S.C. 1103(a)(1), (g), 1551 note; Nielsen v.
Preap, 139 S. Ct. 954, 959 n.2 (2019).
---------------------------------------------------------------------------
<bullet> Section 101(a)(15) of the INA, 8 U.S.C. 1101(a)(15), which
establishes classifications for noncitizens who are coming temporarily
to the United States as nonimmigrants, including the H-1B
classification, see INA sec. 101(a)(15)(H)(i)(b), 8 U.S.C.
1101(a)(15)(H)(i)(b);
<bullet> Section 214(a)(1) of the INA, 8 U.S.C. 1184(a)(1), which
authorizes the Secretary to prescribe, by regulation, the time and
conditions of the admission of nonimmigrants;
<bullet> Section 214(c) of the INA, 8 U.S.C. 1184(c), which, inter
alia, authorizes the Secretary to prescribe how an importing employer
may petition for nonimmigrant workers, including certain nonimmigrants
described at sections 101(a)(15)(H), (L), (O), and (P), 8 U.S.C.
1101(a)(15)(H), (L), (O), and (P); the information that an importing
employer must provide in the petition; and certain fees that are
required for certain nonimmigrant petitions;
<bullet> Section 214(g) of the INA, 8 U.S.C. 1184(g), which, inter
alia, prescribes the H-1B numerical limitations, various exceptions to
those limitations, and the period of authorized admission for H-1B
nonimmigrants;
<bullet> Section 235(d)(3) of the INA, 8 U.S.C. 1225(d)(3), which
authorizes ``any immigration officer'' ``to administer oaths and to
take and consider evidence of or from any person touching the privilege
of any alien or person he believes or suspects to be an alien to enter,
reenter, transit through, or reside in the United States or concerning
any matter which is material and relevant to the enforcement of [the
INA] and the administration of [DHS]'';
<bullet> Section 287(b) of the INA, 8 U.S.C. 1357(b), which
authorizes the taking and consideration of evidence ``concerning any
matter which is material or relevant to the enforcement of the [INA]
and the administration of [DHS]'';
<bullet> Section 402 of the HSA, 6 U.S.C. 202, which charges the
Secretary with ``[e]stablishing and administering rules . . . governing
the granting of visas or other forms of permission . . . to enter the
United States'' and ``[e]stablishing national immigration enforcement
policies and priorities''; see also HSA sec. 428, 6 U.S.C. 236; and
<bullet> Section 451(a)(3) and (b) of the HSA, 6 U.S.C. 271(a)(3)
and (b), transferring to USCIS the authority to adjudicate petitions
for nonimmigrant status, establish policies for performing that
function, and set national immigration services policies and
priorities.
B. Background on H-1B Registration
The H-1B nonimmigrant visa program allows U.S. employers to
temporarily employ foreign workers in specialty occupations, defined by
statute as occupations that require the theoretical and practical
application of a body of highly specialized knowledge and a bachelor's
or higher degree in the specific specialty, or its equivalent. See INA
secs. 101(a)(15)(H)(i)(b) and 214(i), 8 U.S.C 1101(a)(15)(H)(i)(b) and
1184(i). Through the Immigration Act of 1990 (Pub. L. 101-649),
Congress set the current annual cap for the H-1B visa category at
65,000,\3\ which limited the number of beneficiaries who may be issued
an initial H-1B visa or otherwise provided initial H-1B status each
fiscal year.\4\ Congress provided an exemption from the numerical
limits in INA sec. 214(g)(1)(A), 8 U.S.C. 1184(g)(1)(A), for 20,000
initial H-1B visas, or grants of initial H-1B status, each fiscal year
for foreign nationals who have earned a master's or higher degree from
a U.S. institution of higher education (``advanced degree
exemption'').\5\
---------------------------------------------------------------------------
\3\ Up to 6,800 visas are set aside from the 65,000 each fiscal
year for the H-1B1 visa program under terms of the legislation
implementing the U.S.-Chile and U.S.-Singapore free trade
agreements. See INA secs. 101(a)(15)(H)(i)(b1), 214(g)(8), 8 U.S.C.
1101(a)(15)(H)(i)(b1), 1184(g)(8).
\4\ The 65,000 annual H-1B numerical limitation was increased
for FYs 1999-2003. See INA sec. 214(g)(1)(A), 8 U.S.C.
1184(g)(1)(A), as amended by section 411 of the ACWIA, Public Law
105-277, div. C, tit. IV, 112 Stat. 2681, and the American
Competitiveness in the Twenty-first Century Act of 2000 (AC21),
Public Law 106-313, 114 Stat. 1251, as amended by the 21st Century
Department of Justice Appropriations Authorization Act, Public Law
107-273, 116 Stat. 1758 (2002). Subsequent to IMMACT 90, Congress
also created several exemptions from the 65,000 numerical
limitation. See INA sec. 214(g)(5), 8 U.S.C. 1184(g)(5).
\5\ See INA sec. 214(g)(5)(C), 8 U.S.C. 1184(g)(5)(C). This rule
also may refer to the 20,000 exemptions under section 214(g)(5)(C)
from the H-1B regular cap as the ``advanced degree exemption
allocation,'' or ``advanced degree exemption numerical limitation.''
---------------------------------------------------------------------------
To manage the annual cap, USCIS used a random selection process in
years of high demand to determine which petitions were selected toward
the projected number of petitions needed to reach the annual H-1B
numerical allocations. In order to better manage the selection process,
DHS created a registration requirement for H-1B cap-subject petitions,
which was first implemented in 2020 for the FY 2021 cap season. Through
issuance of a final rule in 2019, ``Registration Requirement for
Petitioners Seeking To File H-1B Petitions on Behalf of Cap-Subject
Aliens,'' DHS developed a new way to administer the H-1B cap selection
process to streamline processing and provide overall cost savings to
employers seeking to file H-1B cap-subject petitions. See 84 FR 888
(Jan. 31, 2019). Under this process, prospective petitioners (also
known as registrants) that seek to employ H-1B cap-subject workers must
complete a registration process that requires only basic information
about the prospective petitioner and each requested worker. The H-1B
selection process is then run on properly submitted electronic
registrations. Only those with valid selected registrations are
eligible to file H-1B cap-subject petitions. 8 CFR
214.2(h)(8)(iii)(A)(1).
C. The Need for Regulatory Action
DHS has seen an increase in the number of beneficiaries with
multiple registrations submitted on their behalf, as well as an
increase in the number and percentage of registrations submitted for
beneficiaries with multiple registrations. Under current regulations,
there is no limit on the number of registrations that may be submitted
on behalf of one unique individual by different registrants. DHS has a
strong interest in ensuring that the annual numerical allocations are
going to petitioners that truly intend to employ an H-1B worker, rather
than prospective petitioners using the registration system as a
placeholder for the possibility that they may want to employ an H-1B
worker or as a way to game the selection process. See 88 FR
[[Page 7459]]
72870, 72897 (Oct. 23, 2023). As a result, DHS has determined that
structurally limiting the ability to game the system through
beneficiary centric selection will promote the purpose of fair and
orderly administration of the annual H-1B numerical allocations.
D. Final Rule and Implementation
On October 23, 2023, DHS published an NPRM, ``Modernizing H-1B
Requirements, Providing Flexibility in the F-1 Program, and Program
Improvements Affecting Other Nonimmigrant Workers,'' 88 FR 72870. In
the October 23 NPRM, DHS stated that it may publish one or more final
rules to codify the proposed provisions after carefully considering
public comments, and that it may do so in time for the FY 2025 cap
season. DHS received 1,315 comments on the NPRM, most of which are
substantive. Based on recent program experience and careful review of
public comments expressing the urgent need to reform the registration
system and support for the proposed beneficiary centric selection
process, DHS has decided to first finalize changes to the H-1B
registration selection process and other related changes discussed
below, to urgently address the potential for abuse of the H-1B
registration process, including for the upcoming FY2025 cap season. DHS
continues to consider the suggestions made in public comments received
on the other proposed changes included in the October 23 NPRM and plans
to issue a separate final rule to codify or otherwise address those
proposed changes.
III. Public Comments on the Proposed Rule
A. Summary of Public Comments
In response to the proposed rule, DHS received 1,315 comments
during the 60-day public comment period. Of these, 510 comments were
related to H-1B registration and the related topics that DHS is
finalizing through this rulemaking. Of these, 25 comments were
duplicate submissions and approximately 78 were letters submitted
through mass mailing campaigns. DHS considered all of these comment
submissions. Commenters included individuals (including U.S. workers),
companies, law firms, a federation of labor organizations, professional
organizations, advocacy groups, nonprofit organizations,
representatives from Congress and local governments, universities, and
trade and business associations. Most commenters expressed support for
the rule or offered suggestions for improvement. Of the commenters
opposing the rule, many commenters expressed opposition to a part of or
all of the proposed rule. Some just expressed general opposition to the
rule without suggestions for improvement. For many of the public
comments, DHS could not ascertain whether the commenter supported or
opposed the proposed rule.
DHS has reviewed all of the public comments received in response to
the proposed rule. In this final rule, DHS is only responding to public
comments that are related to H-1B registration and the related topics
that DHS is finalizing through this final rule. DHS's responses are
grouped by subject area, with a focus on the most common issues and
suggestions raised by commenters.
B. Statutory and Legal Issues Related to Registration and Background
1. DHS/USCIS Legal Authority Related to Registration
Comment: While providing feedback on the proposed changes to the H-
1B selection process, a couple of commenters wrote that centering the
selection process around beneficiaries is a proper exercise of DHS's
authority under the INA. Citing INA sec. 214(g)(3) and Walker Macy LLC
v. USCIS, 243 F. Supp. 3d 1156 (D. Or. 2017), the commenters wrote that
the statutory ambiguity around how to allocate H-1B numbers when the
Department receives hundreds of thousands of petitions or registrations
requires DHS to establish ``a reasonable H-1B allocation process for
such situations.'' Another commenter generally stated that the proposed
rule is within the legal framework established by Congress.
Response: DHS agrees with the commenters that it has the statutory
authority to implement the beneficiary centric registration selection
process, consistent with its authority under section 102 of the HSA, 6
U.S.C. 112, and INA secs. 103(a), 214(a) and 214(c), 8 U.S.C. 1103(a),
1184(a) and 1184(c). These are the same authorities that DHS relied
upon to create the registration requirement. See 84 FR 888, 894 (Jan.
31, 2019); see also Liu v. Mayorkas, 588 F.Supp.3d 43, 55 (D.D.C. 2022)
(finding that the registration requirement does not violate the INA and
is not ultra vires). DHS also agrees that the beneficiary centric
registration selection process is a reasonable process for
administering the H-1B numerical allocations because it better ensures
an equal chance of selection for each unique beneficiary registered for
the H-1B cap by a prospective petitioner and systematically reduces the
potential for prospective petitioners to have a higher chance of
selection by abusing the system and working with others to submit
multiple registrations for the same beneficiary.
Comment: An individual commenter stated that it is unclear whether
DHS has the statutory authority to implement the proposed beneficiary
centric selection process. The commenter remarked that the system would
potentially contradict INA sec. 214(g)(3), 8 U.S.C. 1184(g)(3), which
states that H-1B visas shall be issued ``in the order in which
petitions are filed.'' The commenter asserted that the random selection
system was justifiable because it was used to determine which petitions
were considered to be filed earlier than others, but that the proposed
system would not be consistent with this framework. The commenter
contended that the proposed system seems to contradict INA sec.
214(g)(3), 8 U.S.C. 1184(g)(3), because the commenter believes that the
law requires that multiple petitions submitted on behalf of a
beneficiary would give them multiple chances to have their petition
considered as one of the 65,000 earliest filed.
Response: DHS disagrees with the suggestion that it lacks statutory
authority to implement the beneficiary centric registration selection
process or that this process would be inconsistent with INA sec.
214(g)(3), 8 U.S.C. 1184(g)(3), which states that initial H-1B visas or
grants of status shall be issued in the order in which petitions are
filed. ``A registration is not a petition.'' Liu v. Mayorkas, 588
F.Supp.3d 43, 54 (D.D.C. 2022). Registration is merely ``an antecedent
procedural step to be eligible to file an H-1B cap[-subject]
petition.'' Id. at 55. Furthermore, INA sec. 214(g)(3), 8 U.S.C.
1184(g)(3), is silent with regard to how to handle simultaneous
submissions of H-1B cap-subject petitions. See Walker Macy LLC v.
USCIS, 243 F. Supp. 3d 1156, 1167 (D. Or. 2017). Contrary to the
commenter's assertion, the INA does not require USCIS to provide
multiple chances for selection for beneficiaries of multiple H-1B cap-
subject petitions. Rather, consistent with INA sec. 214(g)(7), 8 U.S.C.
1184(g)(7) (``Where multiple petitions are approved for 1 alien, that
alien shall be counted only once''), if multiple employers properly
file H-1B cap-subject petitions for a beneficiary selected during the
beneficiary centric registration selection process, and if multiple H-
1B cap-subject petitions are approved for that beneficiary, the
beneficiary will only be counted once
[[Page 7460]]
toward the numerical allocations.\6\ DHS, therefore, believes that the
beneficiary centric registration selection process, similar to the
registration-based selection process, is not inconsistent with INA sec.
214(g)(3), 8 U.S.C. 1184(g)(3), and is a permissible exercise of DHS's
authority under section 102 of the HSA, 6 U.S.C. 112, and INA secs.
103(a), 214(a) and 214(c), 8 U.S.C. 1103(a), 1184(a) and 1184(c).
---------------------------------------------------------------------------
\6\ See Liu v. Mayorkas, 588 F.Supp.3d 43, 55 (D.D.C. 2022)
(``Consider also that if an alien could have only one employer file
a registration on his behalf, that would conflict with Sec.
1184(g)(7). Such a rule would effectively bar any scenario where an
alien could have more than one petition approved for him. Section
1184(g)(7) would become meaningless. That is why the Registration
Rule allows for multiple registrations. And it adheres to the INA,
because `one alien, one registration' is not in the statutory
language.'').
---------------------------------------------------------------------------
Comment: A comment from multiple members of Congress stated that,
while it is legal for beneficiaries to have multiple employers submit
registrations on their behalf, the current registration system is
``unfair to [beneficiaries] and scrupulous employers, detrimental to
the H-1B system, and inconsistent with statutory intent, as individuals
with multiple selections may be counted as multiple cap slots.'' These
commenters strongly recommended that DHS implement the beneficiary
centric system in time for the FY 2025 registration period.
Response: DHS agrees that the beneficiary centric selection
approach will improve the fairness and integrity of the H-1B
registration process and reduce the possibility for abuse. However, DHS
disagrees with the commenters' suggestion that the current registration
system is inconsistent with the statute or congressional intent.\7\ As
stated in previous responses above, DHS has the statutory authority to
implement the beneficiary centric registration selection process,
consistent with its authority under section 112 of the HSA, 6 U.S.C.
112, and INA secs. 103(a), 214(a) and 214(c), 8 U.S.C. 1103(a), 1184(a)
and 1184(c). DHS also agrees that implementing these improvements as
soon as possible, and in time for the FY 2025 cap season, will be
advantageous to the regulated public and DHS.
---------------------------------------------------------------------------
\7\ The U.S. District Court for the District of Columbia found
that the current registration process is not inconsistent with the
INA and is therefore not ultra vires. See Liu v. Mayorkas, 588
F.Supp.3d 43, 55 (D.D.C. 2022) (``The Rule does not allow more than
65,000 visas (85,000 with the exempt visas included), so it complies
with sec. 1184(g)(1). The Applicants do not argue that the Rule
allows USCIS to issue visas in any order other than the order in
which it receives petitions. Nor could they, because all the
Registration Rule does is require prospective employers to file a
registration as a first step in the process. A registration is not a
petition. The Registration Rule is simply an antecedent procedural
step to be eligible to file an H-1B cap petition. So the Rule does
not violate sec. 1184(g)(3). And the Rule does not violate sec.
1184(g)(7) because it makes no provision for USCIS to count an alien
more than once against the H-1B cap. . . Because the INA is clear,
the Court need not move to Chevron step two. And because the
Registration Rule does not violate the INA, it is not ultra
vires.'') (citations omitted).
---------------------------------------------------------------------------
2. Background and Data on the Current Registration System
Comment: While citing research published in Forbes on May 1,
2023,\8\ a couple of commenters offered general background on selection
in the H-1B registration process, stating that the chances of selection
have decreased from FY 2021 to FY 2024. A commenter expressed support
for the rule, while inaccurately stating that there were ``7.81 million
registrations received during the 2024 fiscal year.'' Another commenter
conveyed support for the proposed rule by referencing the unprecedented
number of registrations received during FY 2024. While referencing the
increase in registrations for beneficiaries with multiple
registrations, a joint submission expressed a vision of the H-1B
registration system in which employers with genuine job opportunities
are not disadvantaged by those who manipulate the registration process.
Citing the increase in the number of ``applications'' within the past 3
years, a commenter stated that this increase was because of businesses
sponsoring multiple applications for the same person.
---------------------------------------------------------------------------
\8\ Anderson, Stuart, ``Immigration Service Likely to Change H-
1B Visa Lottery,'' Forbes (May 1, 2023), <a href="https://www.forbes.com/sites/stuartanderson/2023/05/01/immigration-service-likely-to-change-h-1b-visa-lottery/?sh=5253047d2868">https://www.forbes.com/sites/stuartanderson/2023/05/01/immigration-service-likely-to-change-h-1b-visa-lottery/?sh=5253047d2868</a>.
---------------------------------------------------------------------------
Response: In FY 2024, there were many more registrations than in
previous years. As USCIS stated on its ``H-1B Electronic Registration
Process'' website, there were 780,884 total registrations received
during the registration period for the FY 2024 H-1B cap.\9\ This was a
significant increase over prior years. USCIS also stated on its website
that, generally, there was an increase in the number of registrations
submitted, the number of registrations submitted on behalf of
beneficiaries with multiple registrations, and the number of
registrations submitted on behalf of unique beneficiaries with only one
registration.\10\ USCIS further noted on its website that the large
number of eligible registrations for beneficiaries with multiple
eligible registrations had 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.\11\ As DHS
noted in the proposed rule, beneficiaries who have multiple
registrations submitted on their behalf have a significantly higher
chance of selection, while an individual's chance of selection with a
single registration is greatly reduced, as the number of beneficiaries
with multiple registrations increases under the current system,
increasing the number of registrations overall. Through this rule, DHS
intends to remedy this situation by implementing the beneficiary
centric selection process, where each beneficiary is expected to have
the same chance of selection, regardless of the number of registrations
submitted on their behalf.
---------------------------------------------------------------------------
\9\ USCIS, ``H-1B Electronic Registration Process,'' <a href="https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-electronic-registration-process">https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-electronic-registration-process</a> (last updated July 31, 2023).
\10\ Id.
\11\ Id.
---------------------------------------------------------------------------
Comment: Referencing Tables 3 and 4 of the NPRM, a commenter
remarked that this data was evidence of an increasing trend that
undermined the registration system's fairness and efficiency. The
commenter added that attention and action are needed to maintain the
integrity of the registration system. Another commenter said that the
information presented in Tables 2, 3, and 4 of the NPRM shows instances
where individuals exploit the current registration system to enhance
their chances of selection, thus diminishing the chance of selection
for those with only one registration.
Response: DHS agrees that tables 2, 3, and 4 in the NPRM show a
concerning trend. As noted in the proposed rule, the data show that
multiple registrations on behalf of the same individual are increasing,
and this trend negatively affects the integrity of the registration
system and selection process.
C. Beneficiary Centric Selection
1. General Support
Comment: Several commenters expressed broad support for the changes
to the registration system and implementation of a beneficiary centric
selection process without providing additional rationale. Several other
commenters expressed support for a system where individuals would only
have one chance in the lottery and noted that the proposed measures
would reduce multiple ``entries'' without providing additional
rationale.
Response: The commenters' reference to multiple ``entries'' is not
entirely clear. DHS notes, however, that this rule
[[Page 7461]]
does not prohibit multiple registrations for the same beneficiary and
will not necessarily reduce the number of registrations for the same
beneficiary. The rule is intended to reduce the incentives for
submitting multiple non-meritorious registrations on behalf of the same
beneficiary. Changing how USCIS conducts the selection process to
select by unique beneficiaries instead of registrations will
significantly reduce or eliminate the advantage of submitting multiple
registrations for the same beneficiary solely to increase the chances
of selection and should give all beneficiaries an equal chance at
selection.
Comment: Many commenters expressed support for the proposed
beneficiary centric selection process on the basis that the revisions
are needed or overdue, and some said that making the selection process
fair should be a high priority.
Response: DHS agrees that revisions to the current selection
process are needed to better ensure that the registration system
continues to serve its purpose of efficiently and fairly administering
the annual H-1B numerical allocations. DHS believes that a beneficiary
centric selection process will likely provide each beneficiary with the
same chance for selection without regard to the number of registrations
submitted for each beneficiary and will structurally limit the
potential for bad actors to game the system because working with others
to submit multiple registrations for the same beneficiary will not
increase their chance of selection under the beneficiary centric
selection process. The final rule also provides that if USCIS
determines that registrations were submitted for the same beneficiary
by the same or different registrants, but using different identifying
information, USCIS may find those registrations invalid and deny or
revoke the approval of any H-1B petition filed based on those
registrations. DHS believes that these changes are likely to provide an
equal chance of selection for each beneficiary and significantly limit
the potential for abuse of the registration process.
Comment: Numerous commenters expressed support for the proposed
beneficiary centric selection process on the basis that it would have
positive impacts on the H-1B program overall, including increasing
fairness. These commenters reason that:
<bullet> The proposed rule would enhance the fairness and integrity
of the selection process overall and one individual should have one
entry to the selection process, as it is unfair for individuals to have
more than one chance;
<bullet> Providing all prospective beneficiaries with an equal
opportunity in the selection system would promote social justice and
ethical behaviors;
<bullet> Concerns with the current uncertainties in the selection
process would be alleviated with the changes, which would enhance
transparency and predictability in the selection process and help
achieve the H-1B program's original objectives;
<bullet> The current process harms workers, such as graduates who
submit a single entry due to dedication to their prospective employer;
and
<bullet> Questions on the validity and efficiency of the U.S.
immigration system were addressed and that the changes would help
restore trust in the system.
Response: DHS agrees with these commenters that the beneficiary
centric selection process will likely increase fairness in the
selection process, as well as enhance the integrity of the selection
process overall. DHS anticipates that this change will also enhance
transparency and predictability in the selection process by
structurally limiting the potential for bad actors to game the system.
As noted in the NPRM, DHS is aware that, under the registration-based
selection process, an individual's chance of selection with a single
registration is lower compared to beneficiaries who have multiple
registrations submitted on their behalf and is optimistic that the new
beneficiary centric selection system will increase fairness and help
restore trust in the system.
Comment: Many commenters supported the proposed registration
selection process because it would reduce abuse in the system,
reasoning that:
<bullet> The current system is abused by some companies and
individuals, who submit multiple registrations on potential
beneficiaries' behalf, unfairly strengthening their own chances, and
reducing the chances of other applicants being selected;
<bullet> The revised process would curb fraud, misuse, and
manipulation in the registration system, with some commenters
additionally providing anecdotal accounts of fraud and abuse under the
current system; and
<bullet> Changes to the current system are needed to address
loopholes that allow fraudulent submissions.
Response: DHS agrees that changes to the current system are needed
to address misuse of the system and better ensure that the registration
system continues to serve its purpose of efficiently and fairly
administering the annual H-1B numerical allocations. DHS agrees that
some registrants have attempted to abuse the registration process to
improve the chance of selection for some beneficiaries while reducing
the chances of selection of other potential beneficiaries. The
beneficiary centric selection process in this final rule is designed to
provide each beneficiary with the same chance for selection without
regard to the number of registrations submitted for each beneficiary
and will structurally limit the potential for bad actors to game the
system because working with others to submit multiple registrations for
the same beneficiary will not increase their chance of selection under
the beneficiary centric selection process. Under the beneficiary
centric process, USCIS will select by each unique beneficiary such that
each beneficiary should have the same chance for selection, whether
they are the beneficiary of one registration or one hundred
registrations. DHS has a strong interest in ensuring that the annual
numerical allocations are going to petitioners that truly intend to
employ H-1B workers and anticipates that the revised selection process
will reduce fraud, misuse, and manipulation in the registration system.
Comment: Multiple commenters expressed support for the changes
based on programmatic improvements with respect to reducing
administrative burdens and the number of times the lottery must be run.
These commenters remarked that the proposed changes would enhance
efficiency and reduce the probability of needing to perform additional
selection rounds. Commenters noted that duplicate registrations under
the current selection method wasted limited cap H-1B numbers and
created a time and cost burden for USCIS since the agency had to run
the lottery multiple times. A few commenters also noted that running
the lottery multiple times could negatively affect potential
beneficiaries who cannot stay in the United States to wait for
additional lottery rounds to be run.
A couple of commenters discussed how losses for U.S. employers
under the current system result in additional costs, administrative
burdens, and instability. Some commenters noted that the proposed rule
would reduce the administrative burden for companies aiming to register
potential beneficiaries under the current registration system,
streamlining the process for both registrants and government agencies.
Additionally, a couple of commenters wrote that the proposed selection
process would reduce administrative
[[Page 7462]]
and financial burdens on U.S. companies and employers.
Response: DHS appreciates commenters for their feedback supporting
the change to a beneficiary centric selection process and their
assertions that this change will reduce administrative burdens for
companies and enhance efficiency. Additionally, DHS appreciates the
comments that some companies face hiring instability under the current
registration-based selection process because the chance of selection is
low; and, they may have been required to wait through multiple
selection rounds to find out if their registration for a beneficiary
had been selected. With respect to agency administrative burdens, even
under the beneficiary centric selection process, it is possible that
USCIS may be required to conduct more than one round of selections
depending on how many petitions are filed based on valid registration
selections following the initial or subsequent selection round.
Therefore, DHS cannot forecast with certainty a reduction in
administrative burdens resulting from fewer selection rounds. However,
the beneficiary centric selection process may reduce the likelihood
that USCIS will need to run the selection process more than once in a
fiscal year and may achieve the multiple benefits discussed by the
commenters. DHS also acknowledges the comments that running multiple
selection rounds can negatively affect beneficiaries who are already in
the United States and may not be able to stay through multiple
selection rounds, and notes that the beneficiary centric registration
process may help potential beneficiaries in this manner as well.
Comment: Numerous commenters discussed the negative impact of the
current selection process on fairness, stating that prospective
beneficiaries with one registration or those who comply with H-1B
policies struggle to be selected for an H-1B number due to ongoing
abuse and decreasing selection rates. Some commenters noted that those
who comply with registration requirements are unfairly disadvantaged or
effectively penalized for their decision not to engage in fraud, which
results in inverse selection bias and moral hazard and causes stress
for beneficiaries. Many commenters expressed support for the proposed
beneficiary centric selection and said that the proposed selection
process would promote equity and fairness among prospective H-1B
beneficiaries, and provide prospective beneficiaries with an equal
opportunity for selection. Several commenters stated that the proposed
process would improve opportunities for selection for individuals with
one offer or registration and discourage ``unnecessary competition''
among beneficiaries.
Response: DHS agrees with these commenters that the chances of
selection in the current registration-based cap selection process are
lower for beneficiaries with only one job offer and that this may be
due, in part, to some registrants trying to game the system by working
with others to submit multiple registrations for a single beneficiary.
DHS agrees with these commenters that the new beneficiary centric
selection process will increase fairness for registrants and
beneficiaries and anticipates that changing the selection process will
discourage organizations and beneficiaries from trying to game the
system.
Comment: A commenter stated that ethical and integrity-driven
individuals are naturally disinclined to engage in fraudulent
activities. The commenter indicated that the beneficiary centric
selection process would, therefore, not only combat fraud but also
foster an environment that prioritizes ethics and honesty. The
commenter stated that preventing H-1B program abuse will safeguard the
country's values and bolster the nation's economic and national
security, among other benefits.
Response: DHS appreciates the commenter's feedback on the various
benefits of the beneficiary centric selection process and agrees that
the new beneficiary centric selection process will increase fairness
for all prospective beneficiaries.
Comment: Some commenters expressed support for the proposed
registration selection process on the basis of improved flexibility,
greater autonomy, and more agency for beneficiaries. A few commenters
wrote that the proposed process would empower candidates to select the
employer for whom they ultimately work. Additionally, a commenter said
that beneficiary centric selection would provide beneficiaries with
better bargaining power, ensuring that employers do not undercut wages.
Another commenter wrote that the proposed rule would allow
beneficiaries to negotiate with companies for higher salaries upon
selection, which the commenter said would create an ``imbalance in
salaries.''
Response: DHS generally agrees with these commenters. As noted in
the NPRM, the new beneficiary centric selection process may benefit
beneficiaries by giving them greater autonomy to choose the employer
for whom they ultimately work without decreasing their chances of
selection. 88 FR 72870, 72899 (Oct. 23, 2023). If multiple unrelated
companies submit registrations for a beneficiary and the beneficiary is
selected, then the beneficiary could have flexibility to determine
which company or companies could submit an H-1B petition for the
beneficiary, because all of the companies that submitted a registration
for that unique beneficiary would be notified that their registration
was selected and they are eligible to file a petition on behalf of that
beneficiary. 88 FR 72870, 72899 (Oct. 23, 2023). While DHS cannot
predict whether or how the beneficiary centric system would affect
salaries, H-1B beneficiaries already possess and may exercise autonomy
to change to another H-1B employer offering a higher salary or
preferred work conditions.\12\
---------------------------------------------------------------------------
\12\ See INA section 214(n), 8 U.S.C. 1184(n).
---------------------------------------------------------------------------
Comment: Commenters discussed benefits and impacts on specific
populations of prospective beneficiaries. For example, some commenters
wrote that the proposed changes would ensure fairer opportunities for
international students, particularly those on F-1 student visas. In
addition, a commenter said that the proposed rule would make the
process fairer for highly skilled workers, as the current system favors
low-skilled workers who ``take the majority of the quota,'' through
multiple registrations.
Response: DHS's goal is to set a level playing field for all
potential beneficiaries so that all beneficiaries may have a fair
chance of selection through the revised beneficiary centric selection
process.
Comment: Several commenters expressed support for the proposed
selection process, opining that it would benefit U.S. employers and
companies. Multiple commenters, including a company, discussed
challenges for employers to meet workforce needs under the current
registration selection system, including: the inability to retain
talent due to falling selection rates, the loss of talent as a result
of prospective employees leaving their U.S. employers or the United
States, hesitation among employers to hire foreign workers,
disadvantages for small to medium enterprises that do not have the
means to outsource their workforce, and hampering company efforts to
expand, such as the inability to expand semiconductor design and
manufacturing efforts.
Many commenters remarked on how the proposed selection process
would benefit employers or remediate the above challenges, stating that
the
[[Page 7463]]
revisions would: generally align with or protect the interests of U.S.
companies; allow U.S. companies to attract, increase, or retain foreign
talent and a skilled workforce; promise a targeted or more precise
allocation of visas to cater to the needs of U.S. employers; boost the
confidence of U.S. employers to hire international workers; decrease
disruption in the hiring and talent management process; increase the
productivity and competitiveness of U.S. businesses; and benefit
underserved businesses.
Response: DHS appreciates the feedback that the beneficiary centric
selection process will improve employers' ability to attract and retain
foreign talent and lessen their administrative burden in managing a
competitive workforce. DHS anticipates that this approach will create a
more level playing field so that all beneficiaries may have a fair
chance of selection. While DHS cannot gauge all of the impacts of this
selection process, DHS appreciates the commenters' assessments that it
may improve employee retention, increase productivity, and boost
confidence in hiring international workers.
Comment: Numerous commenters endorsed the beneficiary centric
selection process based on potential outcomes for the U.S. economy
overall. Many of these commenters expressed concern with the current
selection process and its associated outcomes on the U.S. economy and
workforce, including: preventing the United States from retaining
skilled foreign workers; the loss of global competitiveness,
particularly in the technology sector; stifled innovation and growth;
job market distortion and unpredictable workforce availability, as a
result of individuals accepting more offers than they can take;
discrimination against industries that restrict the number of offers
one can accept; harms to the education industry and universities
through the loss of international students; and increased reliance on
outsourcing, which negatively impacts tax revenue and the local job
market.
Commenters stated that the proposed selection process would
positively impact the U.S. economy by: encouraging innovation and
economic growth and fostering technological advancements, research
breakthroughs, and entrepreneurship, which stimulate economic growth
and job opportunities; bolstering the United States' competitive
position in the global economy; benefitting U.S. and international
workers who contribute to the U.S. economy; minimizing labor shortages;
ensuring that the United States can attract highly skilled foreign
professionals; ensuring a more stable and reliable immigration system
that benefits the strength and resilience of the U.S. economy; and
promoting diversity in the U.S. workforce.
Multiple commenters endorsed the proposed selection process on the
basis that it would give prospective beneficiaries the opportunity to
remain in the United States and contribute to the U.S. economy, stating
that:
<bullet> Difficulties with H-1B selection have caused prospective
workers to leave the United States, with some commenters providing
anecdotal remarks to support this view;
<bullet> By rewarding ``volume over veracity,'' the current system
diminishes the ability of prospective beneficiaries to apply their
skills in the U.S. job market; and
<bullet> Current abuse within the selection system deters companies
from extending offers to international workers.
In light of the above concerns, several commenters said that the
proposed revisions to the selection process would instead encourage
international talent to work in the United States and benefit foreign
professionals who already contribute--or aspire to contribute--to the
U.S. economy.
Response: DHS appreciates these commenters' assessments that the
new selection process will positively impact the U.S. economy and that
the U.S. economy may benefit from foreign talent through a revised H-1B
selection process. DHS anticipates that the beneficiary centric
selection process will benefit U.S. companies and prospective
beneficiaries who will contribute to the U.S. economy by creating a
fairer selection process.
2. General Opposition
Comment: An individual commenter opposed the beneficiary centric
process on the grounds that it will decrease the chances of highly
talented or highly qualified beneficiaries to be selected. The
commenter explained that an extraordinary candidate should have a
higher chance of selection compared to a less qualified candidate, and
that it is unfair to give these different candidates the same chance of
selection. The commenter stated that USCIS should act against
fraudulent companies rather than decrease the chance of selection for
highly talented or qualified individuals with multiple job offers.
Response: Under the current registration-based selection process,
beneficiaries with multiple legitimate job offers and registrations are
potentially being crowded out by multiple registrations for
beneficiaries with frivolous job offers. Therefore, an individual's
chance of selection based on one or two registrations is much less than
the chance of selection based on, for example, 80 plus registrations as
was seen in FY 2023. The new beneficiary centric selection process is
designed to provide all individuals, even those with legitimate
multiple registrations, with an equal chance of selection as opposed to
the diminished chances under the current process. DHS recognizes that
the change to the beneficiary centric selection process could
potentially decrease the chance of selection for some beneficiaries
with multiple job offers. It, however, is not clear from the comment
whether or how the population of beneficiaries with multiple job offers
overlaps with the population of ``extraordinary candidates,'' as the
selection process does not take into account the beneficiary's
qualifications. Even if there is such an overlap, DHS believes the
benefits of leveling the playing field for all beneficiaries outweigh
the possible negative consequences to some individuals. Moreover,
extraordinary or highly qualified candidates may have options outside
of cap-subject H-1B employment and could obtain employment in the
United States through alternate paths, such as employment with a cap-
exempt H-1B petitioner or an O-1 nonimmigrant visa. Additionally, DHS
appreciates other commenters' feedback that certain industries or
companies have ethics rules that prevent individuals from accepting job
offers from more than one company at a time, and by extension, prevent
them from having multiple H-1B registrations submitted on their behalf.
As these commenters have indicated, the number of registrations an
individual has is not always an accurate proxy of their talent or
desirability as a candidate for employment.
Finally, because the H-1B registration process is merely an
antecedent procedural step before the H-1B petition may be properly
filed and adjudicated, and is not itself an adjudication, DHS does not
believe that it could implement a selection process based on a relative
comparison of various beneficiaries' qualifications and still retain
the original aim for creating the registration process in the first
place--an efficient process based on minimum information necessary to
administer the annual statutory H-1B numerical allocations.
Comment: A commenter stated it opposes the rule because, as an
organization, it relies on students who
[[Page 7464]]
are not selected in the H-1B lottery for its profits.
Response: DHS disagrees with this comment. The purpose of the
registration system is to provide for the fair and orderly
administration of the annual H-1B numerical allocations, not to provide
profits for certain companies. DHS strongly supports fairness in the
selection process and believes that the beneficiary centric selection
process in this final rule will provide each beneficiary with the same
chance for selection.
3. Identifying Information and Passport Requirement
Comment: Several commenters stated that the use of passport numbers
as identifying information would help mitigate fraud and promote
fairness in the registration system by providing everyone with an equal
chance in the beneficiary centric selection process. In addition to
promoting fairness, a commenter remarked that the use of a unique
passport number adds an additional layer of transparency and
traceability to the selection process, which minimizes the potential
for manipulation or bias. A commenter expressed support for the
requirement, reasoning that citizens from countries where visas are
mandatory to enter the United States already submit passport
information.
Response: DHS agrees with these commenters that the requirement of
a passport number at the time of registration under the beneficiary
centric selection process will help mitigate fraud and abuse of the
registration selection process. In response to other public comments
discussed in this preamble, DHS has decided to modify this proposed
requirement in this final rule by expanding the types of acceptable
documents so that the registration must include either the
beneficiary's valid passport information or valid travel document
information. DHS is making this modification in order to narrowly
accommodate stateless individuals, refugees, and other individuals who
are unable to obtain valid passports. DHS believes that this modified
requirement of a passport or travel document will still help to
mitigate fraud by allowing USCIS to accurately identify each unique
beneficiary, which is integral to the integrity of the beneficiary
centric selection process and the goal of creating a fairer
registration system.
Comment: Some commenters stated that the proposed rule does not
indicate how USCIS will review petitions that have explainable
discrepancies. The commenters suggested that DHS clarify in the
regulations that a petition with explainable discrepancies will be
receipted by USCIS and that the petitioner will be provided an
opportunity to explain the discrepancy.
Response: As proposed, new 8 CFR 214.2(h)(8)(iii)(D)(1) provides
that USCIS may deny an H-1B petition or revoke an approved H-1B
petition if there is a change in the beneficiary's identifying
information from registration to petition filing. The regulatory text
does not state that USCIS will reject an H-1B petition if there is a
change in the beneficiary's identifying information. As further
explained in the NPRM, USCIS will typically afford the petitioner the
opportunity to respond when identifying information provided on the
registration does not match the information provided on the petition,
and petitioners would need to be prepared to explain and document the
reason for any change in identifying information. 88 FR 72870, 72898
(Oct. 23, 2023). DHS believes that the regulatory text, combined with
the preamble explanation in the NPRM and this explanation, is
sufficiently clear to explain that USCIS will receive these petitions
and that the petitioner will have the opportunity to explain the
discrepancies prior to denial or revocation.
Comment: Several commenters expressed appreciation for USCIS'
effort to reduce fraud in the H-1B selection process but at the same
time expressed concern over potential impacts on stateless individuals,
refugees, and other persons who are unable to obtain valid passports.
For instance, an individual commenter stated that USCIS should also
accept registrations for beneficiaries who are refugees and cannot
obtain a passport from their country of origin. The commenter suggested
that USCIS use other travel documents from countries of refugees
instead of only passports. The commenter added that these documents
contain identification numbers similar to passport numbers, and that
existing Department of State practices permit visas to be issued on
these documents. An individual commenter expressed their belief that it
is unfair to bar stateless individuals from obtaining a cap-subject H-
1B visa, which would severely restrict the ability of U.S. employers to
hire these individuals. A joint comment from two advocacy groups
commended USCIS' ``demonstrated concern for stateless individuals'' and
stated that USCIS should allow individuals to provide a unique
identifier other than a passport, accompanied by an explanation of why
they cannot obtain a valid passport. Another commenter expressed
concern that the requirement to submit valid passport information would
prevent employers from submitting registrations for stateless
individuals, those unable to extend or renew passports, refugees,
people who have fled their countries, and individuals with lost or
expired passports. The commenter suggested that the registration
process should have an option for registrants to attest that
beneficiaries are stateless, with additional data requirements
verifying identity for this group such as asking for an A-number or an
employment authorization document (EAD) card number that could serve as
an acceptable identification substitute for the passport number. A
different commenter suggested USCIS accept ``alternative identity
documentation, provided by a national, State, or local government or an
international organization,'' out of concern for stateless individuals,
refugees, other individuals who were forced to flee their country
without passports, and other individuals who are unable to obtain valid
passports. Another commenter similarly suggested that DHS accept
alternative documents ``including other federal or State issued
identification documents that provide similar security integrity
safeguards'' as passports. Other commenters suggested adding a
disclaimer on the registration that falsely claiming to be a stateless
individual will result in the denial of a subsequently filed H-1B cap
petition and revocation of the registration selection notice. A comment
from multiple members of Congress recommended that DHS ``create an
exception to the passport requirement for stateless individuals and
those who are unable to obtain a valid passport due to extraordinary
circumstances outside their control.''
Response: In light of these comments--and consistent with the
Administration's dedication to promoting access for refugees and
stateless individuals--DHS is allowing either the beneficiary's valid
passport information or valid travel document information to be
submitted for H-1B registration purposes. See new 8 CFR
214.2(h)(8)(iii)(A)(4)(ii) and 214.2(h)(8)(iii)(D)(1). As stated above,
this modification is intended to narrowly accommodate stateless
individuals, refugees, and other individuals who are unable to obtain
valid passports. DHS believes that it is important to accommodate
especially vulnerable populations, such as stateless individuals and
refugees. At the same time, this narrow accommodation is not expected
to
[[Page 7465]]
significantly increase the risk that a beneficiary would be registered
under more than one identity document, as a valid travel document that
the beneficiary intends to use to enter the United States is inherently
limited to a single document.
DHS declines to allow additional types of identifying documentation
for H-1B registration purposes. While a narrow accommodation to the
passport requirement is not expected to significantly increase the risk
that a beneficiary would be registered under more than one identity
document, DHS believes that allowing additional identifying
documentation would make the registration system more susceptible to
abuse. Adding more types of acceptable documentation will heighten the
likelihood that beneficiaries would have more than one document that
could be used for registration to game the system and give them more
than one chance in the selection. For example, a beneficiary could have
multiple EAD card numbers or have both an EAD card number and a
passport number. However, DHS does not believe that an individual would
likely have both a valid passport and a valid travel document that they
intend to use to enter the United States in H-1B status; it is unclear
what legitimate reason an individual would have to use both a valid
passport and another valid travel document when seeking to enter the
United States in H-1B status. Further, ``alternative identity
documentation provided by a national, State, or local government or an
international organization'' or ``other federal or state issued
identification documents'' could encompass a broad range of documents
of varying credibility which increases the potential for abuse. For
instance, an ``alternative identity document'' could include a state or
provincial identity card, driver's license, cedula, matricula consular,
or other civil identity or vital statistics document which is not
considered a travel document and is not valid for entry to or departure
from the United States by air.\13\ It is not clear what advantage would
be gained by expanding the universe of acceptable documents to an EAD
card or another alternative identity document that cannot be used to
enter the United States in H-1B status, in line with the purpose of
submitting a registration for the prospective beneficiary in the first
place, compared to the increased risk for fraud that broadening the
universe of acceptable documents would pose.
---------------------------------------------------------------------------
\13\ CBP, ``Carrier Information Guide: United States Document
Requirements for Travel,'' <a href="https://www.cbp.gov/sites/default/files/assets/documents/2023-Nov/Carrier%20Information%20Guide%20ENGLISH.pdf">https://www.cbp.gov/sites/default/files/assets/documents/2023-Nov/Carrier%20Information%20Guide%20ENGLISH.pdf</a> (stating that ``National
identity cards, cedulas, matriculas consular, certificates of
citizenship, certificates of naturalization and other civil identity
or vital statistics documents are NOT considered travel documents
and are NOT valid for departure from the U.S. by air,'' and listing
a driver's license, birth certificate, matricula consular, cedula,
and national identification card as among the examples of documents
that are ``not acceptable for entry to or departure from the United
States.'').
---------------------------------------------------------------------------
DHS also declines to add a new attestation on the registration that
falsely claiming to be a stateless individual will result in the denial
or revocation of the H-1B petition, or finding the registration
invalid. As stated above, DHS has modified the passport requirement to
also allow for a valid travel document. While this modification is
intended to narrowly accommodate stateless individuals, refugees, and
others who are unable to obtain valid passports, it is not limited to
such individuals; thus, it is not necessary to add a new attestation
regarding false claims of statelessness or other claims regarding why
an individual does not have a valid passport. In addition, the
registration tool continues to ask for the beneficiary's country of
citizenship and provides an option for the registrant to list the
beneficiary as ``stateless.'' The registration tool also continues to
require the registrant to certify, under penalty of perjury, that they
have reviewed the registration(s) and that all of the information
contained in the submission is complete, true, and correct.
Comment: A commenter stated that, while passport information is
helpful, ``there are legitimate reasons why a registrant may be unable
to provide valid passport information, and excluding those registrants
is antithetical to ensuring they can petition for the best and
brightest.'' The commenter noted that it is reasonable to assume that
some individuals may not have valid passports at the time of
registration but would be able to obtain them by the time of filing a
petition, and suggested DHS retain the option to allow beneficiaries to
register if they certify that they do not have a valid passport.
Response: As noted above, DHS will retain the passport requirement
in the final rule but has modified the proposed passport requirement to
also allow for a valid travel document. Requiring valid passport or
travel document information, combined with the other collected
biographical information, will allow USCIS to identify unique
individuals more reliably, increasing the likelihood that each
individual would have the same opportunity to be selected, if random
selection were required. While DHS recognizes that some individuals may
not possess a valid passport or travel document, DHS has a strong
interest in requiring passport or travel document information for each
beneficiary, regardless of nationality, to better identify unique
beneficiaries and enhance the integrity of the H-1B registration
system. Further, and consistent with what DHS stated in the NPRM, DHS
believes that requiring passport or travel document information is
reasonable because each registration should represent a legitimate job
offer. In the absence of a valid passport or travel document, it is not
clear how most beneficiaries could enter the United States in H-1B
status pursuant to that job offer. Therefore, this rule will only
accelerate the time by which the beneficiary needs to obtain a passport
or travel document if the beneficiary does not already have one of
those documents. See 88 FR 72870, 72898 (Oct. 23, 2023).
Comment: Several commenters expressed concerns with fraud related
to the passport requirement. These commenters indicated that a passport
number alone is insufficient to identify a unique beneficiary because
individuals are able to obtain multiple passports or fraudulent
passports. For example, a commenter said that people with dual
citizenship or citizenship in multiple countries could potentially
exploit the registration system by filing with different passport
numbers and country of issuance. One commenter mentioned the potential
exploitation of the system from individuals using multiple identities
or passports from different countries, while a couple of other
commenters expressed concern that individuals might abuse or circumvent
the proposed passport requirement and discussed the importance of using
additional identifiers to avoid potential fraud.
Several commenters provided alternatives related to identifying
information, suggesting that USCIS:
<bullet> Link a registration or the definition of ``unique'' to an
individual's Social Security number (SSN) or Individual Taxpayer
Identification Number (ITIN);
<bullet> Require a history of passports;
<bullet> Include a declaration of authenticity or an affirmation of
truth;
<bullet> Require additional information, including the name, date
of birth, place of birth, and similar information in addition to
passport information;
<bullet> Verify passport information provided on registrations and
petitions are correct and legitimate;
<bullet> Require a photograph (and use face recognition technology)
at registration, or require both a photo and passport
[[Page 7466]]
number to be submitted on the visa petition and with any lottery
registration application to ensure the beneficiary is the same person
at every step;
<bullet> Use an alternative process where a prospective beneficiary
submits a registration with their personal information (including
passport information) to USCIS, and USCIS will send that prospective
beneficiary a confirmation PDF containing a unique confirmation number
employers can then use to identify and register the beneficiary; and
<bullet> Require prospective beneficiaries to ``provide biometric
information during the application process.''
Response: DHS has considered the concern of potential exploitation
through using fraudulent passports or multiple passports. DHS believes
that using a passport number as a unique identifier is a reasonable
approach that appropriately balances the interests of integrity in the
selection process with access to the registration system. DHS also
believes its expansion to allow for a valid travel document in lieu of
a valid passport does not significantly increase the risk of
exploitation through using fraudulent or multiple travel documents,
particularly since a valid travel document that the beneficiary intends
to use to enter the United States is inherently limited in scope.
Further, the regulations clearly state that a beneficiary may only be
registered under one passport or travel document. See new 8 CFR
214.2(h)(8)(iii)(A)(4).
The final rule also contains other safeguards that are sufficient
to address potential exploitation. The regulations at new 8 CFR
214.2(h)(8)(iii)(A)(2), make clear that a beneficiary having multiple
registrations filed on their behalf using different identifying
information is grounds for finding the registrations invalid and
denying, or revoking the approval of, any H-1B petition filed on their
behalf. Thus, if USCIS determines that registrations were submitted for
the same beneficiary but using different passport information, USCIS
would have the authority to invalidate such registrations and deny or
revoke the approval of any H-1B petition filed based on those
registrations under new 8 CFR 214.2(h)(8)(iii)(A)(2). USCIS may do so
even if the beneficiary had more than one valid passport or travel
document, such as a beneficiary with dual citizenship who has passports
issued by different countries.\14\
---------------------------------------------------------------------------
\14\ See ``Modernizing H-1B Requirements, Providing Flexibility
in the F-1 Program, and Program Improvements Affecting Other
Nonimmigrant Workers,'' 88 FR 72870, 72898 (Oct. 23, 2023) (``Even
if a beneficiary had more than one valid passport, such as a
beneficiary with dual citizenship, a beneficiary would only be able
to be registered under one of those passports.'').
---------------------------------------------------------------------------
USCIS will also continue to require information on a beneficiary's
legal name, date of birth, and country of birth as part of the
registration process. USCIS will use this information to analyze
registration information and identify instances where beneficiaries are
registered with different identifying information. When USCIS
identifies such instances, any H-1B petition filed for that beneficiary
may be subject to denial or revocation.
With respect to comments that suggested USCIS use a Social Security
number or individual taxpayer identification number as a unique
identifier, DHS believes requiring a Social Security number or
individual taxpayer identification number would not be feasible as
individuals who have never held H-1B status or another nonimmigrant
status or employment authorization in the United States likely would
not have such numbers. In regard to the suggestion to collect
biometrics, including photos, for beneficiaries prior to the
registration process, DHS notes that collecting biometrics for all
beneficiaries prior to registration would be operationally infeasible
for USCIS and would add additional burdens for beneficiaries,
especially those overseas. In regard to the suggestion to collect a
history of passports, DHS believes this would be overly burdensome for
USCIS, registrants, and beneficiaries. DHS will collect sufficient
information to enable USCIS to identify the beneficiary of the
registration, check for duplicate registrations submitted by the same
prospective petitioner, and match selected registrations with
subsequently filed H-1B petitions, without overly burdening the
employer or collecting unnecessary information, in compliance with the
Paperwork Reduction Act (PRA). Requiring a valid passport or valid
travel document strikes the balance between protecting the integrity of
the registration system and maintaining accessibility to the
registration system and the H-1B program.
With respect to the suggestion that USCIS include an affirmation of
truth on the registration, in completing the H-1B registration, the
registrant must already certify, under penalty of perjury, that the
information contained in the registration is complete, true and
correct. The registrant must also certify that the registration
reflects a legitimate job offer, and that the registrant intends to
file an H-1B petition on behalf of the individual named in the
registration. DHS believes the existing attestations are sufficient.
DHS also considered the suggestion that USCIS use an alternative
process where a prospective beneficiary receives a unique confirmation
number from USCIS after submitting their passport number, which the
beneficiary would then give to potential employers to enter in the
registration system. This alternative process, however, would not be
any more effective than identifying a prospective beneficiary by their
valid passport or travel document information as provided by a
prospective petitioner or its representative because DHS would continue
to rely on the beneficiary to provide accurate information to both DHS
and the prospective petitioner or its representative. This two-step
process would add additional time to the overall registration period
with no explanation provided of how it would enhance identity
verification more than the proposed beneficiary centric process.
4. Implementation and Effective Date
Comment: Numerous commenters requested that USCIS implement the
rule for the FY 2025 cap season (the H-1B registration period and
related selection process beginning in March 2024). Many commenters
requested the proposed rule be implemented as soon as possible. A
couple of commenters similarly requested swift implementation of the
proposed rule with no specified timeframe, while a few commenters
remarked that they hope the proposed rule could take effect ``right
now''. One commenter stated it is likely that multiple registrations
will ``skyrocket'' this upcoming H-1B cap season without immediate
implementation of the beneficiary centric provision. Additionally, a
commenter asked DHS to consider whether this portion of the NPRM should
proceed separately and be promulgated as an interim final rule as soon
as possible in order to ensure that it is in effect in advance of the
2024 cap registration cycle.
Multiple commenters stated that quick implementation of the
proposed rule would increase fairness, equity, and integrity in the
registration process. A commenter said that the planned implementation
for the FY 2025 H-1B cap season demonstrated the government's
commitment to improving the immigration system. Another commenter
stressed the need for implementation ``before next year's selection
process,'' reasoning that potential beneficiaries have time constraints
for getting the H-1B visa
[[Page 7467]]
when they work with F-1 OPT or STEM OPT.
Response: DHS agrees with the need for prompt implementation of
this rule. This rule will be effective in time for the FY 2025 H-1B cap
season (the H-1B registration period and related selection process
beginning in March 2024).
Comment: Some commenters encouraged DHS to separate and move
forward with the proposed H-1B registration changes for the upcoming
cap season, but to refrain from finalizing any of the other provisions
until it has sufficiently considered stakeholder feedback. Another
commenter requested DHS to consider implementing these changes in
phases so that stakeholders will be aware of what is coming.
Response: As stated above, DHS will finalize the proposed H-1B
registration changes and other registration-related provisions in time
for the FY 2025 H-1B cap season. DHS continues to consider public
comments received on the other proposed changes included in the October
23 NPRM and plans to issue a separate final rule to finalize or
otherwise address those proposed changes.
5. Other Comments on the Beneficiary Centric Selection Process
Comment: A few commenters requested clarification on the process
for registrants after a beneficiary is selected. A commenter asked
whether USCIS would adjudicate all petitions filed for a beneficiary or
whether the Department would randomly select an employer. Another
commenter encouraged DHS to clarify whether it permits all selected
registrants to file an H-1B petition or if it will only allow one of
the selected registrants to proceed. Additionally, a commenter asked
DHS to include a clearly defined systemic mechanism that allows
employers to know how to submit the sponsoring petition if a
beneficiary has had multiple employers submit a registration on their
behalf thereby eliminating the need for employers to solely rely on
their beneficiaries to share this information.
Response: Where a selected beneficiary has multiple H-1B petitions
that are properly filed on their behalf based on valid registrations,
USCIS will adjudicate each petition. DHS did not propose to, nor will
it, randomly select an employer whose petition it will adjudicate. As
the NPRM states, if a beneficiary were selected, each registrant that
submitted a registration on that beneficiary's behalf would be notified
by USCIS of selection and would be eligible to file a petition on that
beneficiary's behalf.\15\ This is not a change from the current
registration system, under which more than one registrant can register
for the same beneficiary and any selected registrant is eligible to
file an H-1B petition on behalf of that beneficiary if the petition is
based on a valid registration selection notice. More than one
registrant can file a petition on behalf of a single selected
beneficiary and USCIS will adjudicate all properly filed petitions. DHS
has no role in deciding which registrants ultimately choose to file a
petition based on their selected beneficiary. It is expected that
registrants will communicate with the selected beneficiary to make
informed decisions regarding whether to file an H-1B petition.
---------------------------------------------------------------------------
\15\ ``Modernizing H-1B Requirements, Providing Flexibility in
the F-1 Program, and Program Improvements Affecting Other
Nonimmigrant Workers,'' 88 FR 72870, 72898 (Oct. 23, 2023) (``If a
beneficiary were selected, each registrant that submitted a
registration on that beneficiary's behalf would be notified of
selection and would be eligible to file a petition on that
beneficiary's behalf. See proposed 8 CFR 214.2(h)(8)(iii)(A)(1) and
(4).'').
---------------------------------------------------------------------------
Comment: Several commenters noted concerns with allowing multiple
registration entries for an individual, and suggested changes to the
registration system to prohibit or reject multiple registrations for a
single beneficiary. One commenter suggested that only the submission
for a beneficiary from the ``most current employer'' should be valid
and all others voided. Another commenter specified that DHS should not
only eliminate the ability for related entities to submit a single
registrant multiple times, but also prevent unrelated registrants from
submitting multiple registrations for a beneficiary. Some of these
commenters stated generally that multiple registrations should not
increase the chance a beneficiary is selected, as submitting multiple
entries for one individual is unfair to other individuals.
Additionally, a commenter remarked that duplicate entries for
beneficiaries by consultancies undermines the fairness of the selection
process. Another commenter, expressing support for the proposed
registration process, remarked on other negative impacts of current
abuse on the H-1B program stating that since H-1B holders can legally
work for only one employer at a time, there is no rationale for
selecting multiple entries for a potential beneficiary in the lottery
system and wasting USCIS resources.
Response: Like the commenters, DHS is concerned with the integrity
of the registration system and attempts to circumvent the selection
process under the current registration system. As such, the focus of
this rule is to ensure that each individual beneficiary has an equal
chance of selection and to remove the advantage of submitting multiple
registrations for the same beneficiary to increase the chances of
selection. However, DHS declines to restrict the registration process
to one total registration per beneficiary. DHS acknowledges that there
could be legitimate reasons for an individual to have more than one
registration submitted on their behalf. Moreover, the beneficiary
centric selection process will essentially accomplish the goal these
suggestions seek to achieve, which is to ensure that each individual
beneficiary has an equal chance of selection and reduce fraud.
Comment: Some commenters expressed the need for DHS to allow
registrants to view if multiple registrations have been submitted for a
beneficiary. For instance, a commenter generally supported the proposed
beneficiary centric system but expressed a need to ``[ensure] fairness
for employers who invest in foreign national talent'' by providing
employers with visibility into a beneficiary's multiple registrations.
The commenter recommended that USCIS include in the selection
notification to employers an indication of either: (1) the number of
employer registrations; or (2) whether the beneficiary has one or
multiple employer registrations. The commenter stated that such
information will help employers make more informed decisions when
deciding to invest significant resources to file an H-1B petition and
will also help reduce any legal consequences that may arise from
multiple petitions being approved for the same beneficiary. Other
commenters similarly requested USCIS to institute a mechanism that
informs a potential employer that a beneficiary has more than one
registration. One commenter suggested it would be fair for the U.S.
employer to see if the beneficiary has multiple registrations because
the H-1B is employer-sponsored.
Response: While DHS agrees that the H-1B process is employer-
sponsored, DHS declines to make these suggested changes. It is expected
that prospective petitioners will communicate with their selected
beneficiaries to make informed decisions regarding whether to file an
H-1B petition. DHS also notes that the beneficiary centric selection
process does not substantially differ from the current registration-
based selection process in this regard and remains an employer-driven
process given that registrations and petitions will continue to be
submitted by sponsoring
[[Page 7468]]
employers. A beneficiary in the current registration-based selection
process may have multiple valid registrations selected that were
submitted on their behalf by different companies, and thus have
multiple petitions filed on their behalf by different companies based
on those valid registration selection notices. Allowing for multiple
cap petitions is consistent with INA section 214(g)(7), 8 U.S.C.
1184(g)(7), which states that when multiple cap petitions are filed and
approved for a beneficiary, the beneficiary shall only be counted once
toward the H-1B numerical allocations. DHS also believes that the
commenter's suggestions regarding sharing information about
registrations submitted by other prospective petitioners for a selected
beneficiary goes beyond the intent of the narrow changes implemented in
this final rule, which is to better ensure that each unique beneficiary
has the same chance of selection in the H-1B registration selection
process. As such, DHS declines to adopt the commenters' suggestions.
Comment: A commenter expressed support for allowing all companies
that submitted a registration for a selected beneficiary to file an H-
1B petition. The commenter noted possible negative consequences of not
limiting the number of H-1B petitions that can be submitted for a
selected beneficiary but concluded that allowing all companies that
submitted a registration for a selected beneficiary to file an H-1B
petition is ``a good solution.'' For example, the commenter noted that
requiring a beneficiary to choose only one employer upon which to
proceed with H-1B filing will be detrimental to the beneficiary if that
sole petition is not approved or if it is approved and the beneficiary
loses the job after approval but before the effective date.
Response: DHS appreciates the commenter's feedback and confirms
that generally all prospective petitioners that properly submitted a
registration for a selected beneficiary will be eligible to file an H-
1B petition for the beneficiary named in their registration selection
notice during the applicable filing period, provided that they are not
related entities without a legitimate business need to file multiple
cap petitions.
Comment: Some commenters requested clarity on how multiple H-1B
petition approvals would affect a beneficiary's status. A commenter
urged DHS to ``clarify and codify that each approved H-1B petition is
valid, and that neither the date of filing, the date of adjudication
(benefiting those filing with premium processing), or the requested
start date (for those chosen in later selections) impact the validity
of an approved H-1B petition, and that the beneficiary can commence
work under any of the approved petitions even if another petition in
the same H-1B filing period is subsequently approved.'' Another
commenter asked for clarity regarding possible status issues that could
result from the current NPRM, including clarifying that a petition is
only ``active'' when the beneficiary begins to work for the petitioner.
This commenter stated that such clarification will be particularly
important if DHS finalizes its proposal regarding a flexible start
date. A different commenter asked for clarification that ``any filed
and approved petitions will remain valid until withdrawal by the
petitioner'' and noted that multiple petition approvals requesting
change of status may cause confusion regarding the beneficiary's
status.
Response: The filing of multiple petitions for the same beneficiary
has always been a possibility, such as in concurrent employment
situations. DHS confirms that an approved H-1B petition may remain
valid notwithstanding the subsequent approval of an H-1B petition for
the same beneficiary. DHS further confirms that upon approval of a cap-
subject petition, including a request for change of status, the
starting validity date will be the start date reflected on Form I-797,
Notice of Action (Approval Notice), notwithstanding the date of filing,
the date of adjudication, or the requested start date on the petition.
DHS also confirms that a beneficiary may commence work under any of the
approved petitions as long as they remain valid and the beneficiary is
in H-1B nonimmigrant status, as is the case under current practice.
Given that the regulation states that a petitioner shall immediately
notify USCIS of any changes in the terms and conditions of employment
of a beneficiary, DHS reminds petitioners of their obligation to file
new or amended petitions where appropriate and their ability to
withdraw petitions where appropriate. See 8 CFR 214.2(h)(11)(i)(A),
(iii)(A)(1).
DHS would also like to clarify that providing start date
flexibility does not impact the beneficiary's status when multiple
petitions are filed but is a narrow revision codifying current practice
that allows a later start date when there are multiple rounds of
selection, and the petition filing window extends beyond October 1. As
explained in the NPRM, other restrictions on the petition start date
will remain in place, such as the requirement that a petition may not
be filed earlier than 6 months before the date of actual need. See 8
CFR 214.2(h)(2)(i)(I).
Comment: A few commenters indicated that DHS should not allow more
than one petition per beneficiary. A commenter requested that DHS
provide, in regulation, a process that USCIS would allow only one
petition per beneficiary to be filed at a time, which would reduce the
risk of multiple filings and prevent unnecessary use of USCIS
resources. Under this process, if a petition is denied other than due
to fraud or misrepresentation, a selected beneficiary could then pursue
H-1B status through other employers that submitted registrations on
their behalf. Another commenter noted that ``allowing multiple
petitions would result in unnecessary inefficiencies for both USCIS and
petitioning employers.''
Response: With respect to the suggestion that DHS restrict the
petition filing process to one total petition per beneficiary, DHS
declines to make this change. Under current practice, the filing of
multiple petitions for the same beneficiary has always been a
possibility, and the beneficiary centric process is not designed to
change this practice.
Section 214(g)(7) of the INA, 8 U.S.C. 1184(g)(7), specifically
contemplates that more than one petition can be filed for a beneficiary
(``Where multiple petitions are approved for 1 alien, that alien shall
be counted only once''). Thus, such a limitation may not be consistent
with that statute. DHS also acknowledges that there could be legitimate
reasons for an individual to have more than one petition filed by
different petitioners on their behalf.
D. Start Date Flexibility for Certain H-1B Cap-Subject Petitions
Comment: Multiple commenters expressed broad support for the
proposal to permit start date flexibility for certain H-1B cap-subject
petitions, with one stating that the change to permit requested start
dates on or after October 1 of the relevant fiscal year will benefit F-
1 students and universities and another stating that the change
``codifies the elimination of a confusing ``trap'' for ``visa lottery''
H-1B visa petitioners.'' One commenter asked the agency to explicitly
provide start date flexibility in situations where a requested validity
period ends before the petitioner receives the approval notice.
Response: DHS agrees with the comments that providing start date
flexibility for certain H-1B cap-subject petitions will be beneficial
in many ways. As stated in the NPRM, this
[[Page 7469]]
proposal will align the regulations related to H-1B cap-subject
petitions with current USCIS practice, which is to permit a requested
petition start date of October 1 or later, as long as the requested
petition start date does not exceed 6 months beyond the filing date of
the petition. 88 FR 72870, 72888, 72898 (Oct. 23, 2023). The request to
provide start date flexibility in situations where a requested validity
period ends before the petitioner receives the approval notice does not
align with the changes that DHS proposed in the NPRM about the start
date, which was to remove the language at 8 CFR 214.2(h)(8)(iii)(A)(4)
that limited the requested start date when filing a cap-subject
petition. Rather, this request aligns with the proposed ``Validity
Expires Before Adjudication'' provision at 8 CFR 214.2(h)(9)(ii)(D)(1)
of the NPRM. DHS is not finalizing that provision in this rule. The
start date flexibility provision relates only to the flexibility in
start date that petitioners may use on cap subject H-1B filings, as
described in the NPRM, allowing start dates after October 1 of the
applicable fiscal year.
E. Registration Related Integrity Measures
1. Bar on Multiple Registrations and Petitions Submitted by Related
Entities Without a Legitimate Business Need
Comment: Some commenters expressed general support for the bar on
multiple registrations submitted by related entities at proposed 8 CFR
214.2(h)(2)(i)(G). A few commenters wrote that the proposed bar would
help reduce fraud and exploitation of the selection process.
Additionally, a few commenters reasoned that the proposed provision
would promote equity and fairness in the selection process, noting that
the proposed provision mirrors the existing restrictions on filing
multiple cap-subject petitions. Furthermore, a commenter remarked that
the proposal would reinforce legitimate business needs as the basis for
selection.
Response: DHS appreciates the commenters' feedback but has decided
not to finalize the proposed bar on multiple registrations submitted by
related entities at this time, although DHS intends to address and may
finalize this proposed provision in a subsequent final rule. While the
intention behind this provision is to reduce fraud in the selection
process, changing the structure of the registration process to a
beneficiary centric selection process will reduce fraud and abuse of
the registration process and more time and data will help inform the
utility of this proposed provision.
Comment: A commenter applauded the change to a beneficiary centric
registration system but opined that this change ``makes unnecessary any
requirement that related entities prove a legitimate business need to
file multiple petitions for the same beneficiary'' under current 8 CFR
214.2(h)(2)(i)(G). The commenter ``urge[d] USCIS to delete the portion
of 8 CFR 214.2(h)(2)(i)(G) dealing with related entities in its
entirety.'' Other commenters similarly questioned the need to restrict
multiple petitions by related entities under the beneficiary centric
system, with one commenter stating that, in reality, some related
entities are so large that they do not communicate and/or coordinate
workforce issues with each other.
Response: DHS declines to make any changes to current 8 CFR
214.2(h)(2)(i)(G) at this time. DHS did not propose to eliminate or
alter current 8 CFR 214.2(h)(2)(i)(G) with respect to multiple
petitions by related entities without a legitimate business need. As
stated in the NPRM, if registration were suspended, this bar on
multiple petitions would remain relevant. 88 FR 72888, 72900 (Oct. 23,
2023). Even when registration is required, and even with the change to
a beneficiary centric selection process, DHS believes that the bar on
multiple H-1B cap petitions by related entities without a legitimate
business need remains an integrity measure to guard against related
entities filing multiple petitions without a legitimate business need
simply to increase their chances of getting an approval and resulting
cap number/exemption for the selected beneficiary. While unrelated
entities would likely not be working together and would have no
incentive to file multiple H-1B cap petitions for the same beneficiary
without a legitimate business need, related entities would have an
incentive to work together to file multiple H-1B cap petitions for the
same beneficiary simply to increase their chances of getting an
approval for that beneficiary. While the new beneficiary centric
selection process will likely eliminate the incentive for related
entities to game the system to increase the odds of selection at the
registration stage, DHS does not believe that the beneficiary centric
selection process will eliminate or significantly impact the incentives
to game the system to increase the odds of approval at the petition
stage that currently exist and are mitigated by the existing
regulation. Thus, DHS disagrees with the commenters that the
beneficiary centric selection process will render the bar on multiple
petitions by related entities at current 8 CFR 214.2(h)(2)(i)(G)
unnecessary.
DHS acknowledges that the existing ``related entities'' and
``legitimate business need'' standards place some evidentiary burden on
petitioners. However, removing those limitations would essentially
allow all petitioners to file multiple H-1B cap petitions for the same
beneficiary without any restrictions. DHS believes the existing burdens
to petitioners are outweighed by the increased risk of gaming that
removing all restrictions on multiple H-1B cap petitions by related
entities, absent a legitimate business need, would pose.
Comment: A commenter stated that DHS should eliminate the portion
of proposed 8 CFR 214.2(h)(2)(i)(G) which discusses ``related
entities'' because, in part, the terms ``related entities'' and
``legitimate business need'' used in the provision are ambiguous,
unworkable, and likely to contribute unnecessarily to agency backlogs.
Response: The existing prohibition on related entities filing
multiple petitions for the same beneficiary at 8 CFR 214.2(h)(2)(i)(G)
remains. DHS is not making any changes to existing 8 CFR
214.2(h)(2)(i)(G), noting that the terms ``related entities'' and
``legitimate business need'' in the provision are not new terms and
that USCIS issued policy guidance on these terms in Matter of S- Inc.,
Adopted Decision 2018-02 (AAO Mar. 23, 2018).
2. Registrations With False Information or That Are Otherwise Invalid
Comment: A couple of commenters expressed support for codifying the
ability for USCIS to deny H-1B petitions or revoke approved petitions
on the basis that it includes a false attestation. The commenters said
this change showed the importance of accuracy and honesty in the
registration system and would make the system more resilient and
dependable in resisting fraudulent activity.
Response: DHS agrees with the commenters that codifying the ability
for USCIS to deny or revoke H-1B petitions that provide untrue,
incorrect, inaccurate, or fraudulent statements of fact, or
misrepresent material facts, including providing false attestations on
the registration, will improve the integrity of the registration
system.
Comment: A few commenters expressed concern with extending
regulations on denials and revocation of H-1B petitions for statements
on petitions that are ``inaccurate, fraudulent, or misrepresented a
material fact'' to information provided in the
[[Page 7470]]
registration, particularly with respect to typographical errors. For
instance, a commenter expressed concern with USCIS expanding the
regulations at proposed 8 CFR 214.2(h)(10)(ii), (h)(11)(iii)(A)(2),
stating that this expansion would allow ``automatically denying or
revoking H-1B petitions due to inaccurate information contained on a
registration'' and would not allow a petitioner an opportunity to
correct an unintentional typographical error. The commenter recommended
changes to the regulatory text at 8 CFR 214.2(h)(8)(iii)(D)(1) to
codify that USCIS may excuse typographical errors on a registration in
its discretion when ``the H-1B petition [is] supported by relevant
identity documents and where [the] petitioner satisfies USCIS that the
inaccuracy was unintentional and did not create any advantage in the
lottery selection.'' A few commenters stated that the final rule should
permit some ability to correct typographical, non-substantive errors,
with one commenter requesting DHS amend the regulatory text to
specifically state that USCIS may excuse typographical errors on a
registration in its discretion. One of these commenters also requested
that DHS allow officer discretion regarding permissible changes to
identifying information rather than an exhaustive list of scenarios in
which the change will be acceptable. Another commenter stated that
automatically denying or revoking H-1B petitions solely due to
typographical errors in the registration is inconsistent with current
USCIS policy. Another commenter stated that the regulatory provision
does not clearly indicate how USCIS will review and accept petitions
that have explainable discrepancies and said that the regulations
should explicitly state that USCIS will issue a receipt for a petition
with discrepancies, which would provide the petitioner with an
opportunity to address and explain any disparities.
Response: DHS first notes that USCIS does not, and would not,
automatically revoke a petition under 8 CFR 214.2(h)(11)(iii), as that
paragraph pertains to revocation on notice. See 8 CFR 214.2(h)(11)(iii)
(``Revocation on notice''). Thus, the proposed provision at 8 CFR
214.2(h)(11)(iii)(A)(2), as finalized by this rule, clearly provides
for revocation upon notice. Regarding denials, the addition of the
beneficiary centric selection process to the regulation at 8 CFR
214.2(h)(10)(ii) will not change the operation of that regulation or
USCIS policy that generally provides for notice and an opportunity to
respond prior to the denial of a petition.
DHS will not adopt the suggestions to expressly codify that a
``typographical error'' may be a permissible change in identifying
information in some circumstances at 8 CFR 214.2(h)(8)(iii)(D)(1), nor
will it adopt any of the other related changes suggested by the
commenters. DHS believes these changes are unnecessary. USCIS has not
changed its position that it will not automatically reject the Form I-
129 petition for typographical errors on the selected registration in
comparison with the Form I-129.\16\ The burden remains on the
registrant/petitioner to confirm that all registration and petition
information is correct and to establish that the H-1B cap petition is
based on a valid registration submitted for the beneficiary named in
the petition and selected by USCIS.\17\ Also, USCIS adjudicators
already have the ability to exercise discretion after allowing the
petitioner to explain a mismatch in identifying information. The NPRM
made clear that ``USCIS would typically afford the petitioner the
opportunity to respond when identifying information provided on the
registration does not match the information provided on the petition,
and petitioners would need to be prepared to explain and document the
reason for any change in identifying information. In its discretion,
USCIS could find that a change in identifying information is
permissible.'' 88 FR 72870, 72898 (Oct. 23, 2023). The phrase ``could
include, but would not be limited to'' in new 8 CFR
214.2(h)(8)(iii)(D)(1) already makes clear that the listed
circumstances are examples, not an exhaustive list.
---------------------------------------------------------------------------
\16\ USCIS, ``H-1B Electronic Registration Process,'' <a href="https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-electronic-registration-process">https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-electronic-registration-process</a> (last updated July 31, 2023).
\17\ Id.
---------------------------------------------------------------------------
Additionally, when entering submissions in the registration tool,
registrants and their representatives are given the opportunity to
review the data entered before submitting, giving them ample time to
double-check what is entered. Furthermore, registrants and their
representatives have until the close of the registration period to
correct any errors they may have made on a registration. As stated in
the final registration rule, ``USCIS will allow petitioners to edit a
registration up until the petitioner submits the registration. A
petitioner may delete a registration and resubmit it prior to the close
of the registration period.'' 84 FR 888, 900 (Jan. 31, 2019). Thus, DHS
believes registrants already have sufficient opportunities to identify
and correct typographical errors.
Finally, codifying language in the regulation about typographical
errors in a registration may invite false claims of ``typographical
error,'' in an attempt to game the beneficiary centric registration
process by trying to make one beneficiary appear as two different
beneficiaries. DHS, therefore, will not adopt the commenter's
suggestion because codifying an exception for typographical errors
could undermine the other changes being made in this final rule to
limit the potential for abuse and gaming of the registration system and
better ensure that each beneficiary has the same chance for selection.
Comment: A commenter suggested DHS ``expressly add an intent
requirement, or otherwise clarify the need for intentionality, before
revocation is considered,'' because there can be ``several innocent
reasons why a registration may be technically inaccurate.''
Response: DHS does not believe it is necessary to introduce a
requirement of intent to this provision. DHS believes registrants
already have sufficient opportunity to address inaccuracies in
information submitted in the registration process. As stated above, new
8 CFR 214.2(h)(11)(iii)(A)(2) provides for revocation upon notice and
the addition of registration to the regulation at 8 CFR
214.2(h)(10)(ii) does not change the operation of that regulation or
USCIS policy that generally provides for notice and an opportunity to
respond prior to the denial of a petition. USCIS adjudicators already
have the ability to exercise discretion after allowing the petitioner
to explain a mismatch in identifying information.
Further, introducing a requirement of intent may needlessly
complicate and delay adjudication. DHS believes that the regulatory
framework, as proposed and finalized by this rule, sufficiently affords
the ability to explain inaccuracies in the registration process.
Comment: While discussing proposed 8 CFR 214.2(h)(8)(iii)(D)(2), a
joint submission from a professional association and an advocacy group
suggested that the proposed section be either removed or amended,
reasoning there was potential for ``significant issues'' with the
payment mechanism during the registration process. Referencing issues
associated with the Department of Treasury's ``<a href="http://Pay.gov">Pay.gov</a>'' site, the
commenters expressed concern that H-1B registrations could be rejected
in situations where payment issues resulted from system issues, rather
than
[[Page 7471]]
user error. The commenters urged USCIS to ``make every reasonable
effort'' to communicate with petitioners upon a payment issue being
discovered so that it could be resolved and proposed ``specific
changes'' to the notification process associated with payment issues,
including an email notification and a grace period following
notification of a payment issue. A different commenter, while generally
supportive of proposed 8 CFR 214.2(h)(8)(iii)(D)(2), similarly
requested a ``notice and response process prior to denial or revocation
of a petition'' for invalid fees in recognition that ``simple banking
or other administrative errors could lead to unreconciled fees that do
not reflect fraud or abuse of the system.''
Response: DHS thanks the commenters for their feedback. However,
DHS declines to adopt the commenters' suggestions to allow a period of
time to cure a deficient registration payment at the time of petition
filing, or to provide in all cases a notice and response process prior
to denying or revoking a petition. Proper submission of the
registration is an antecedent procedural requirement to properly file
the petition. Allowing a petition to be filed based on a registration
with a deficient payment could create a framework in which there is
little incentive to properly pay for any registration until it is
selected, and a petition based on that registration is being filed. It
would not be feasible to investigate in all cases whether a failed
payment was truly in error or specifically done to delay paying the
registration fee until that registration was selected and a petition
filed. This would undermine the current fee structure that supports the
registration system development, supporting services and maintenance.
Allowing a registration with a deficient payment to be cured after
selection could lead to an avenue to abuse the registration system.
Currently, registrations that are designated as having a failed payment
are not included in the H-1B cap selection process. If the suggested
regulatory language were adopted, USCIS would have to include those
registrations with a failed payment in the selection process (in order
to properly give registrants the suggested 10 days to cure any payment
deficiencies). As indicated above, this could lead to opportunities to
abuse the system by simply delaying payment for all registrations until
after the selection process is completed and then only paying for those
that are selected. It could also mean that those registrations that
truly failed payment would still be included in selection. This could
lead to the selection of more registrations that would not be followed
by a petition filing, thus increasing the difficulty in administering
the cap.
It is also operationally burdensome to collect the registration fee
at the time of petition intake or in response to a request for evidence
(RFE) or notice of intent to deny (NOID) on that petition. Requiring
USCIS to manually process these payments upon petition intake via check
or credit card payment (as opposed to the automated <a href="http://Pay.gov">Pay.gov</a> payment
system in place at the time of registration) would not be operationally
efficient and would require USCIS to incur additional expenses, as
USCIS incurs a cost any time it must process additional payments or
issue additional RFEs or NOIDs.
DHS also will not currently adopt the suggestions to modify the
registration system itself to further notify registrants of the status
of their payments due to current system limitations and requirements.
The registration system will notify registrants that payment has been
initially processed. The registration system will also show the status
of the registration as ``Invalidated-Failed Payment'' once USCIS
identifies that the payment has failed, and USCIS will send registrants
an email or SMS text to log into their account and check for updates.
Additionally, payees can proactively confirm the status of a payment by
contacting their bank, credit card company, or payment service, and
confirm payment generally by the next business day, if not before.\18\
Thus, payees already have ways to confirm payment status at the
registration stage and proactively take steps to remedy payment issues.
Regardless, USCIS will consider options to display additional payment
information within the registration system in the future.
---------------------------------------------------------------------------
\18\ <a href="http://Pay.gov">Pay.gov</a>, ``Frequently Asked Questions,'' <a href="https://www.pay.gov/WebHelp/HTML/faqs.html">https://www.pay.gov/WebHelp/HTML/faqs.html</a> (payments from bank accounts will
be charged the next business day; credit and debit card payments are
visible within 24 hours; payments through a payment service are
charged according to the service's schedule). (Last visited January
9, 2024.)
---------------------------------------------------------------------------
Comment: A couple of commenters expressed support for the proposal
to add invalid registration as a ground for revocation, reasoning it
showed the importance of honesty and accuracy in the registration
process. A commenter added that the proposal would help to ensure the
dependability and resiliency of the selection process against
fraudulent practices. Another commenter expressed general support for
extending the grounds of denial or revocation to expressly include
registrations with false information or that are otherwise invalid.
This commenter also expressed general support for the beneficiary
centric process and the bar on multiple registrations submitted by
related entities, reasoning that limiting the number of ``false''
registrations would make the registration process more manageable and
reduce USCIS' workload.
Response: DHS agrees with these commenters and anticipates that
this rule will enhance the fairness and integrity in the registration
process. As explained in the NPRM, to allow companies to provide false
information on the registration without consequence would allow them to
potentially take a cap number for which they are ineligible.
3. Other Comments and Alternatives to Anti-Fraud Measures Related to
Registration
Comment: Numerous commenters provided general comments on fraud in
the H-1B registration system and advocated for general improvements to
mechanisms for identifying and preventing abuse. Multiple commenters
generally discussed the need for anti-fraud measures to address abuse
in the registration system, stating that changes are needed to promote
fairness and integrity of the H-1B visa program, preserve the
reputation and transparency of the U.S. immigration system, protect
U.S. workers, allow skilled foreign professionals to stay in the United
States and contribute to the economy, and ensure the number of
registrations aligns with available job openings and the needs of the
country.
Response: DHS remains committed to deterring and preventing abuse
of the registration process and to ensuring only those who follow the
law are eligible to file an H-1B cap petition. To this end, USCIS has
already undertaken extensive fraud investigations, denied and revoked
petitions accordingly, and continues to make law enforcement referrals
for criminal prosecution. USCIS has also increased messaging reminding
the public that at the time each registration is submitted, each
prospective petitioner is required to sign an attestation, under
penalty of perjury, that: all of the information contained in the
registration submission is complete, true, and correct; the
registration(s) reflects a legitimate job offer; the registrant intends
to file a petition if selected; and the registrant has not worked with
others to unfairly increase the chance of selection.\19\ In finalizing
[[Page 7472]]
the proposed regulatory text at 8 CFR 214.2(h)(10)(ii) and
(11)(iii)(A)(2), DHS reiterates that submitting false or incorrect
information on the registration, including false attestations, is
grounds for denial or revocation of the approval of the petition.
---------------------------------------------------------------------------
\19\ USCIS, ``H-1B Electronic Registration Process,'' <a href="https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-electronic-registration-process">https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-electronic-registration-process</a> (last updated July 31, 2023).
---------------------------------------------------------------------------
Additionally, in changing to the beneficiary centric registration,
multiple frivolous registrations that may not represent legitimate bona
fide jobs will no longer increase an individual's chances of being
selected. As such, the beneficiary centric selection will remove the
incentive to have multiple registrations solely to increase selection
chances.
Comment: Many commenters voiced concern over frivolous
registrations and fraud in the H-1B selection process, specifically the
use of fraudulent companies to submit registrations and registrations
from individuals without valid job offers.
Many of these commenters stated that the proposed changes do not go
far enough and urged USCIS to bar certain types of entities from
submitting registrations and/or invalidate certain types of
registrations prior to running the lottery. These commenters stated
that USCIS should:
<bullet> Block speculative entries from being considered in the
selection process;
<bullet> Stop individuals from using fake job offers to register by
closing loopholes that allow companies to submit registrations for
individuals without valid job offers;
<bullet> Require beneficiaries working for consulting companies or
third-party contractors to have valid client job offers;
<bullet> Implement a verification process for registrants,
beneficiaries, documents (such as passports), and/or job offers at
registration;
<bullet> Increase the transparency, oversight, reporting, and
auditing of the selection process;
<bullet> Ban beneficiary-owners from submitting registrations or
limit registrations from beneficiary-owners to only those who can
demonstrate legitimate work; and
<bullet> Screen potential registrants for certain labor and
employment law violations and disputes and prohibit any employer with
recent or ongoing labor violations or disputes from participating in
the H-1B registration process.
Response: DHS is unable to invalidate or bar certain registrations,
such as registrations that are deemed frivolous or submitted by certain
types of companies, at the registration stage because that would
require USCIS to adjudicate the underlying registration. USCIS does not
adjudicate a registration. Further, the registration process is not the
stage at which USCIS assesses the veracity of documents, the bona fides
of the job offer, or other aspects of the offered position. As
previously stated in the NPRM, submission of the registration is merely
an antecedent procedural requirement to properly file an H-1B cap-
subject petition and is not intended to replace the petition
adjudication process or assess the eligibility of the beneficiary for
the offered position. 88 FR 72870, 72899 (Oct. 23, 2023). Additionally,
as noted above, the beneficiary centric registration removes the
incentive for a beneficiary to have multiple registrations solely to
increase their chance of selection, which DHS anticipates will reduce
the number of frivolous registrations.
Comment: To reduce frivolous registrations, a few commenters
suggested requiring additional information on the registration, such
as: requiring companies to submit job offer letters, job descriptions,
and documentation during registration; asking employers to provide full
LCAs at the time of initial registration; and requiring registrants to
document that it has a non-speculative position in a specialty
occupation for the beneficiary as of the start date of the validity
period requested on the registration.
Response: Beyond requiring valid passport or travel document
information for the beneficiary on the registration, DHS is not
requiring additional new information on the registration at this time.
DHS does not believe that requesting additional information about the
beneficiary, the petitioner, or the underlying job offer or position,
is necessary to effectively administer the registration system. Some of
the additional information proposed by commenters (such as information
about the job offer) is information that USCIS would require and review
to determine eligibility in the adjudication of the H-1B petition.
Establishing eligibility is not a requirement for submitting a
registration. USCIS believes the change to require valid passport
information or valid travel document information is sufficient to
identify the beneficiary and reduce potential fraud and abuse of the
registration system.
Comment: Several commenters noted continuing concerns with the
registration process and advocated for increased penalties to prevent
further fraud and abuse, including:
<bullet> Review and investigate companies and beneficiaries who
abused the H-1B system in previous years;
<bullet> A ban, such as for 5 or 10 years, for companies and
beneficiaries who engage in fraudulent activities;
<bullet> A 10-year ban for beneficiaries and companies that do not
file a petition after being selected;
<bullet> Charge fines to employers found to have flooded the
registration process with frivolous registrations and collect
additional fees from registrants to pass a portion of these fines and
additional fees directly to the Department of Labor to fund their
investigation and enforcement activities in the H-1B program;
<bullet> At the registration stage, audit all registrants with more
than ten registrations and debar registrants found to have engaged in
registration fraud;
<bullet> Revoke H-1B visas for those who have previously exploited
the system; and
<bullet> Implementing consequences for companies that abuse the
registration process and impose stricter penalties for those found
guilty of abuse.
Response: DHS has undertaken efforts to deter abuse of the
registration system and to ensure that those who abuse the registration
system are not eligible for H-1B cap petition approval. As noted
previously, in finalizing the proposed regulatory text at 8 CFR
214.2(h)(10)(ii) and (11)(iii)(A)(2), DHS reiterates that submitting
false or incorrect information on the registration, including false
attestations, is grounds for denial or revocation of the approval of
the petition. If USCIS has reason to believe that the attestations made
during registration are not correct, it will investigate the parties in
question, including examining evidence of collusion and patterns of
non-filing of petitions. Where appropriate, USCIS will deny or revoke
the approval of petitions where the attestations made at the
registration stage are found to be false, including making findings of
fraud or willful material misrepresentation against petitioners, if the
facts of the case support such findings.
Regarding the suggestions that USCIS audit companies with 10 or
more registrations, fine or ban certain companies from participating in
the registration process after being found to have engaged in
registration fraud, and charge additional fees to support
investigations and enforcement activities, DHS declines these
suggestions. DHS does not think that companies that submit more than a
certain number of registrations for different beneficiaries necessarily
[[Page 7473]]
warrant investigation as many companies, and in particular large
companies, may have a legitimate need to hire multiple H-1B
beneficiaries. Requiring USCIS to audit companies that properly submit
more than a certain number of registrations would be an ineffective use
of resources and would take resources away from pursuing investigations
that are more likely to uncover fraud and abuse. In addition, the H-1B
registration process moves quickly and USCIS does not adjudicate a
registration at the registration stage. Further, as explained in the
NPRM,\20\ USCIS has examined patterns in the registration process and
has investigated companies based on evidence suggesting that they were
attempting to game the system. However, blocking or fining employers
from participating in the H-1B registration process goes beyond what
DHS proposed in the NPRM. This suggested alternative would take
significant time and agency resources and would be insufficient to
address the issues with the current registration process that DHS
anticipates the beneficiary centric selection process will successfully
address. In addition, as DHS indicated in the 2019 registration final
rule, there may be monetary fines/criminal penalties under 18 U.S.C.
1001(a)(3) which apply generally to statements/representations made to
the Federal Government, and registrants that engage in a pattern and
practice of submitting registrations for which they do not file a
petition following selection may be referred for investigation of
potential abuse of the system.\21\ USCIS will continue to investigate
and hold bad actors accountable to the extent of its authority,
including making law enforcement referrals for criminal investigation.
---------------------------------------------------------------------------
\20\ 88 FR 72870, 72889 (Oct. 23, 2023) (``DHS continues to take
steps against potential abuse and is in the process of investigating
potential malfeasance and possible referrals to law enforcement
agencies.'').
\21\ 84 FR 888, 904 (Jan. 31, 2019).
---------------------------------------------------------------------------
Finally, with respect to the suggestion that DHS impose an
additional registration fee to further fund investigations and
enforcement in the H-1B program, DHS did not propose to increase the H-
1B registration fee in the H-1B NPRM, and any such proposal would need
to be subject to public notice and comment before being finalized. As
discussed elsewhere in this rule, DHS did propose to increase the H-1B
registration fee in the Fee Rule NPRM.\22\ Any fee increase resulting
from the Fee Rule NPRM proposal would be addressed in a separate final
rule that may be issued based on that separate regulatory proposal. In
addition, DHS may address any subsequent registration fee increase in
future rulemaking.
---------------------------------------------------------------------------
\22\ 88 FR 402, 500-501 (Jan. 4, 2023).
---------------------------------------------------------------------------
F. Other Comments Related to the Proposed Registration System
1. Electronic Registration vs. Paper-Based Filing
Comment: A few commenters recommended improving the current
registration system and/or enhancing online filing capabilities instead
of reverting to the paper-based filing system. An individual commenter
stated that reverting to a paper-based system increases the risk of
human error, makes it challenging to identify unique individuals, and
increases vulnerabilities to manipulation and bribery.
Response: DHS does not intend to revert to a paper-based system and
intends to conduct the electronic registration process for the FY 2025
cap season.\23\ As noted in the NPRM, DHS considered the alternative of
eliminating the electronic registration system and reverting to the
paper-based filing system stakeholders used prior to implementing
registration, but ultimately determined that the benefits of having an
electronic registration system still outweigh the costs and any
potential problems caused by frivolous filings. DHS proposed changes to
the registration system to mitigate the potential for frivolous filings
and is now finalizing those changes, with some modifications to the
NPRM as discussed above.
---------------------------------------------------------------------------
\23\ But note that the current regulations provide USCIS with
the discretion to suspend the H-1B registration process, and revert
to a paper-based selection process, in the event it determines that
the H-1B registration process is inoperable for any reason. 8 CFR
214.2(h)(8)(iv). DHS did not propose changes to this process, and
this option remains available to USCIS.
---------------------------------------------------------------------------
Comment: A commenter stated that if the new beneficiary centric
registration process cannot be implemented in time for the FY 2025 cap
season, ``USCIS must indeed go back to the old system of paper filings
to preserve its credibility and the credibility of its H-1B program as
a whole.''
Response: DHS does not intend to revert to a paper-based system and
intends to conduct the electronic registration process, with
beneficiary centric selection, for the FY 2025 cap season.
2. Comments on Fees Related to Registration
Comment: Multiple commenters discussed the current $10 registration
fee. Several commenters stated that USCIS' decision to implement a $10
registration fee has increased fraud in the registration system by
incentivizing individuals to provide false employment information.
Another commenter stated that the registration fee of $10 renders the
limited number of available visas insufficient to meet the demand at
that price. Several commenters suggested that USCIS increase fees or
change fee collection to discourage fraud, for example:
<bullet> A fee increase of approximately $500 to $1,000 per
registration;
<bullet> Implementing a requirement to pay the Fraud Prevention and
Detection fee of $500 along with a new filing fee of $215;
<bullet> Increasing fee from ten dollars ($10) to $215, per the FY
2022/2023 fee rule;
<bullet> Require a ``large'' deposit that is refundable; and
<bullet> Increase registration fees to allow only ``serious
companies'' to submit registrations.
Response: DHS did not propose to increase registration fees in the
October 23 NPRM. Because DHS did not propose any changes to the H-1B
registration fee in this rulemaking, these comments are outside the
scope of this rulemaking. However, on January 4, 2023, DHS published an
NPRM to adjust certain immigration and naturalization benefit request
fees. 88 FR 402 (Jan. 4, 2023). In that NPRM, DHS proposed, among other
things, to increase the H-1B registration fee from $10 to $215. The
comment period for the proposed rule closed on March 13, 2023. DHS
received nearly 8,000 comments in response to the NPRM, including
comments relating to the proposed increase in the H-1B registration
fee. Many of the comments received in response to the proposed fee rule
relating to the proposed increase in the H-1B registration fee were
similar to the comments submitted here. DHS will soon issue a rule to
finalize its adjustment to immigration and naturalization benefit
request fees, including the H-1B registration fee. Public comments on
the increase in the H-1B registration fee can be found in the Fee rule
NPRM rulemaking docket, and the responses to those comments will be in
the Fee final rule.
Comment: A few commenters said that USCIS should collect upfront
all filing fees for the Form I-129 petition to deter fraudulent
registrations. USCIS would then refund the petition filing fees to
those whose registrations were not selected.
Response: DHS declines to adopt the commenters' suggestions to
collect petition filing fees at time of registration. Petition filing
fees will be collected when the petition is filed,
[[Page 7474]]
consistent with current practice. DHS does not view registration as the
same as filing a petition because the submission of the registration is
merely an antecedent procedural requirement to properly file an H-1B
cap-subject petition. DHS also cannot adopt the suggestions to require
petitioners to include petition filing fees at the time of registration
due to current system limitations and requirements. Requiring USCIS to
refund or hold funds would not be operationally efficient and would
require USCIS to incur additional expenses, as USCIS incurs a cost any
time it is required to refund a fee to an applicant or petitioner. 84
FR 888, 903-904 (Jan. 31, 2019).
3. Other Comments and Alternatives Related to Registration
Comment: A couple of commenters generally supported the beneficiary
centric changes to the registration process but indicated that these
changes do not adequately address the ``increasing demand for talent in
the U.S. economy'' or the ``ever growing need for more H-1B talent in
the U.S.'' One of these commenters said that DHS should work with
lawmakers to increase the annual cap. Another commenter indicated that
the significant increase in registrations in the past few lotteries
effectively resulted in those who did not submit multiple registrations
being ``penalized for not engaging in fraud.'' This commenter suggested
that, in addition to the beneficiary-based selection, USCIS should
consider temporarily increasing the number of registrations it selects
to help compensate those who were unfairly disadvantaged during the
last few lotteries.
Response: The change to a beneficiary centric selection process is
intended to address issues related to fairness and integrity of the
selection process, not issues related to labor demand or raising the
statutory cap. Congress set the current annual regular H-1B cap at
65,000 and the annual H-1B advanced degree exemption at 20,000. DHS
does not have the statutory authority to increase--even temporarily--
these congressionally mandated caps.
Regarding the suggestion to temporarily raise the number of
selected registrations, USCIS already takes into account historical
data related to approvals, denials, revocations, and other relevant
factors when calculating the number of registrations projected as
needed to meet the statutory numerical allocations; and, if necessary,
USCIS may increase those numbers throughout the fiscal year. See 8 CFR
214.2(h)(8)(iii)(E). In fact, USCIS has generally increased the total
number of registrations it has selected for each fiscal year since the
implementation of the registration system.\24\ Therefore, DHS declines
to make any changes as a result of these comments but will continue to
rely on data and all relevant information when projecting how many
registrations to select toward the 65,000 statutory numerical
limitation and the 20,000 advanced degree exemption.
---------------------------------------------------------------------------
\24\ USCIS made a total selection of 124,415 in cap fiscal year
2021, 131,924 in cap fiscal year 2022, 127,600 in cap fiscal year
2021, and 188,400 in cap fiscal year 2024. USCIS, ``H-1B Electronic
Registration Process,'' <a href="https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-electronic-registration-process">https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-electronic-registration-process</a> (last updated July 31,
2023).
---------------------------------------------------------------------------
Comment: A few commenters offered suggestions for alternative forms
of relief for F-1 students or other prospective beneficiaries who were
disadvantaged in prior lotteries. Without elaborating, a commenter
stated that the NPRM failed to address the concerns of F-1 students
impacted by fraudulent activities in the past 3 years and that DHS
should provide ``alternative relief options for genuine candidates
facing uncertainties.'' Another commenter suggested that DHS should
offer an employment authorization document ``as a form of
compensation'' for individuals who were not selected following H-1B
registration periods in prior years. While not specific to F-1 students
who were disadvantaged in prior lotteries, a commenter requested DHS to
consider extending cap-gap to all F-1 OPT or STEM OPT students
registered in the H-1B lottery until USCIS concludes the lottery
selection process for the fiscal year.
Response: As previously noted, changing the registration process to
a beneficiary centric system is intended to address issues related to
fairness and integrity of the selection process. DHS is not attempting
to provide relief or compensate individuals who were not selected in
previous registration periods through this regulatory action and
declines to adopt these suggestions.
Comment: Multiple commenters suggested that DHS remove the random
selection process altogether and instead suggested that the Department
select registrations based on particular characteristics. These
commenters suggested that the Department:
<bullet> Replace the random selection process with a merit-based
system;
<bullet> Replace the random selection process with a ``percentage
auction'' in which employers would bid for H-1B visas;
<bullet> Select registrations based on company needs and individual
skills;
<bullet> Implement a points-based system in place of a random
selection system;
<bullet> Implement a wage-level/wage or salary amount/income-based
prioritization system, including:
[cir] Wage-based allocation process for employers paying the
highest wages/salaries for non-speculative jobs or having terms and
conditions of employment set through a collective bargaining agreement;
[cir] Select registrations based on the highest salaries;
[cir] Change the random selection process to an income-based
system, and remove the lower income levels from the system to prevent
outsourcing and displacement of U.S. talent;
[cir] Automatically select a registration for a job offer above a
certain salary;
<bullet> Select registrations based on ``virtuous employer
behavior'', such as hiring graduates of U.S. universities, sponsoring
H-1B workers for permanence, or having terms and conditions of
employment set through a collective bargaining agreement;
<bullet> Introduce degree-based categorizations in the selection
system, reasoning that such an approach would allow more advanced
degrees, like Ph.D.s, to have a unique category to align with the
specialty-based nature of H-1B visas;
<bullet> Work with the Department of Labor (DOL) to identify
industries with heavy demand for workers and give those industries
priority;
<bullet> Provide priority status for U.S. master's students, Ph.D.
graduates, and beneficiaries with greater than 10 years of work
experience;
<bullet> Prioritize registrations based on the duration of the
beneficiary's work experience or active full-time employment;
<bullet> Increase the chances of selection for individuals residing
in the United States relative to those who are outside the country,
individuals residing in the United States legally, international
students, or U.S. graduates in the United States; and
<bullet> Revise the registration system so that it rewards highly
motivated individuals who will make ``genuine contributions'' and
contribute to the U.S. economy.
Response: In the NPRM, DHS did not propose to prioritize or give
preference to any registration based on skills, salaries/wages,
education, experience, industry, or any other new criteria. Rather, the
goal of this rule is to provide each unique beneficiary with an equal
chance of selection. Selecting based on specific characteristics would
not
[[Page 7475]]
achieve this goal. DHS declines to implement any of these suggestions.
Comment: A commenter claimed that ``the names of people who are not
selected seems to be clustered,'' the random selection process can be
biased and can ``screen out people,'' and that ``numbers generated by
computers are skewed and prefer specific numbers.''
Response: DHS disagrees with this comment. If USCIS determines it
has received enough electronic registrations at the close of the
initial registration period to reach the applicable numerical
allocation(s), USCIS will randomly select from among the registrations
properly submitted during the initial registration period the number of
registrations deemed necessary to meet the applicable allocation. As
the selection is done via a random selection algorithm, there is no
bias or preference for certain registrants over others. The commenter
did not provide evidence or cite to data to support their claim that
the selection algorithm is biased. As noted above, DHS anticipates that
the changes made with this rulemaking will reduce the potential for
gaming the registration process and help ensure that each beneficiary
has the same chance of being selected.
Comment: A few commenters suggested a ``cap,'' ``quota,'' or other
restrictions on registrations for beneficiaries from certain countries,
remarking that the current registration system has seen
disproportionate representation from nationals of certain countries. A
commenter remarked that the proposed changes would allow for fairer
opportunities for beneficiaries of various nationalities, rather than
beneficiaries from certain countries--the commenter cited USCIS H-1B
petition data from 2019 indicating that 74.5 percent of H-1B petition
beneficiaries were from India.\25\
---------------------------------------------------------------------------
\25\ See USCIS, ``H -1B Petitions by Gender and Country of Birth
Fiscal Year; 2019,'' <a href="https://www.uscis.gov/sites/default/files/document/data/h-1b-petitions-by-gender-country-of-birth-fy2019.pdf">https://www.uscis.gov/sites/default/files/document/data/h-1b-petitions-by-gender-country-of-birth-fy2019.pdf</a>
(Jan. 21, 2020).
---------------------------------------------------------------------------
Response: DHS declines to adopt a cap, quota, or other restriction
on registrations based on a beneficiary's nationality. DHS disagrees
with the assertion that a beneficiary's nationality has any relevance
to their chance of selection under the registration-based selection
process or the beneficiary centric selection process.
Comment: A commenter requested DHS to allow cap-exempt H-1B holders
to transition to cap-subject employers without participating in the
registration selection process, stating that the current system imposes
burdens on both the employee and the prospective employer but also
opens the door to potential H-1B program abuses and fraudulent
activities, especially by unscrupulous companies that exploit the
system through multiple filings and manipulative practices.
Response: DHS declines to adopt this suggestion. The NPRM did not
propose to address the issue of cap-exempt H-1B workers transitioning
to cap-subject employers. Allowing a cap-exempt H-1B worker to transfer
to a cap-subject employer without participating in the registration
selection process would violate 8 CFR 214.2(h)(8)(iii)(F)(5) which the
NPRM did not propose to change, as well as INA sec. 214(g)(6), 8 U.S.C.
1184(g)(6).
Comment: A commenter requested DHS to allow a beneficiary to view
the case status of an H-1B registration filed by their employer,
stating that this will allow a beneficiary to verify the information
provided about them by a prospective employer. Another commenter
suggested that registrations should be submitted by the beneficiaries
rather than the employers, so that the beneficiaries can review the
information first-hand, or alternatively that the beneficiaries co-file
with the employer. Conversely, another commenter indicated that they
appreciate that USCIS did not change the system to allow beneficiaries
to submit their own registrations, noting that it could result in many
offshore beneficiaries submitting registrations in hopes of obtaining a
job offer after selection.
Response: DHS agrees with the commenter who supported DHS not
changing who can submit a registration to include beneficiaries. DHS
will not implement a change to allow beneficiaries to submit H-1B
registrations. The registration process will continue to be employer-
based to align with the petition process. In addition, while DHS
incorporated a call for preliminary feedback on the beneficiary
notification concept, including the ability to access case status
information, DHS is not yet in the position to implement the
commenter's suggestions. However, these suggestions will be considered
for future action.
Comment: A commenter encouraged DHS to work with the U.S.
Department of the Treasury to increase the <a href="http://Pay.gov">Pay.gov</a> daily credit card
transaction limit, stating that the current relatively low limit
creates considerable challenges for companies submitting a large volume
of registrations, and eliminating or significantly increasing the
transaction limit would contribute to the NPRM goals of modernizing the
program.
Response: Transaction limits in <a href="http://Pay.gov">Pay.gov</a> are established by the U.S.
Department of the Treasury (``Treasury) and are outside DHS's
regulatory authority. Therefore, DHS did not propose to amend these
limits in the NPRM and will not make any changes in that regard in this
final rule. However, in past years, USCIS actively worked with Treasury
outside of this rulemaking to waive/increase transaction limits
affecting the H-1B registration process and now intends to request an
exemption under recently issued Treasury guidance so that it may
process credit card transactions in excess of the current daily and
monthly credit card transaction limits. USCIS is moving forward with
requesting approval from Treasury to increase the transaction limits
from $24,999 to $39,999, and every effort will be made to obtain
approval for the increase in time for the initial registration period
in March of 2024.
Comment: A commenter recommended changes to the myUSCIS portal so
that when it sends the petitioner or an attorney a notification after
one or more selections occur, the notification will identify the
specific individuals who were selected.
Response: DHS understands that the commenter is asking USCIS to
enhance automatic account update alerts to explicitly state what has
changed in the online account, such as the specific registrant(s) and/
or beneficiary(ies) impacted, when a selection has been made. The
intent of these alerts is to prompt each online account holder to log
into their account to see the details of the case update and obtain
specific information on the pending case. Because each matter is case
specific, the details in the issued agency notices is important and
carefully crafted to present actionable information as well as protect
personally identifiable information. For H-1B registrations, the
selection notices posted to the online account present the names of the
selected beneficiary and of the prospective petitioner, dates of
births, contact information, and tax identification numbers. In
contrast, the automated messages sent to account holders' email or by
SMS text, as selected by the account holder, are intentionally kept
general to protect privacy and prevent any inadvertent disclosure of
personal information. DHS, therefore, declines to adopt the commenter's
suggestion.
Comment: As a way to improve accountability and program integrity,
a commenter recommended DHS provide public disclosure of ``employer and
recruiter information at the initial registration stage'' and create
``an active mechanism for public objection and
[[Page 7476]]
comment that will be taken into consideration by those ultimately
certifying H-1B petitions.'' Another commenter stated DHS should
disclose to the public the names of the companies and information about
their use or misuse of the visa program.
Response: DHS will not implement these suggestions at this time. As
stated above, submission of the registration is merely an antecedent
procedural requirement to properly file an H-1B cap-subject petition
and is not intended to replace the petition adjudication process or
assess the eligibility of the beneficiary for the offered position.
Therefore, because registration submission and selection is not an
adjudication, USCIS would not have a mechanism or need to consider
public objection and comment in the context of registration selection.
The goal of this rule is to provide each unique beneficiary with an
equal chance of selection. It is not clear from the comment how
creating a system of public disclosure and mechanisms for public
objection to registrations would help to achieve this goal. Finally,
with respect to the suggestion that DHS disclose to the public the
names of the companies and information about how they are using the
program, it is not clear from the comment whether this suggestion is
limited to the H-1B registration process or the H-1B program more
broadly. It is also not clear what the commenter meant by ``how
companies are using the visa program.'' DHS notes that it already has
an H-1B Data Hub \26\ where members of the public can search H-1B
program information, including employer names, NAICS codes, and
geographic information to better understand how the H-1B program is
being used, and that third parties may already report alleged fraud or
abuse in the H-1B program through an online tip form.\27\ As such, DHS
will not adopt the suggestions at this time.
---------------------------------------------------------------------------
\26\ See USCIS, ``H-1B Employer Data Hub,'' <a href="https://www.uscis.gov/tools/reports-and-studies/h-1b-employer-data-hub">https://www.uscis.gov/tools/reports-and-studies/h-1b-employer-data-hub</a> (last
visited Jan. 2, 2024).
\27\ See USCIS, ``Combatting Fraud and Abuse in the H-1B Visa
Program,'' <a href="https://www.uscis.gov/scams-fraud-and-misconduct/report-fraud/combating-fraud-and-abuse-in-the-h-1b-visa-program#H-1B%20Fraud%20and%20Abuse%20Indicators">https://www.uscis.gov/scams-fraud-and-misconduct/report-fraud/combating-fraud-and-abuse-in-the-h-1b-visa-program#H-1B%20Fraud%20and%20Abuse%20Indicators</a>. Under the heading ``Reporting
Suspected H-1B Fraud or Abuse,'' USCIS states: ``Anyone (including
American workers and H-1B workers who suspect they or others may be
the victim of H-1B fraud or abuse) can send us tips, alleged
violations, and other relevant information about potential fraud or
abuse using our online tip form.'' (Last visited Jan. 2, 2024.)
---------------------------------------------------------------------------
IV. Severability
The provisions of this rule are severable from each other such that
if a court were to hold that any provision is invalid or unenforceable
as to a particular person or circumstance, the rule would remain in
effect as to any other person or circumstance. Specifically, DHS
intends that the provisions governing the beneficiary centric selection
process in paragraph (h)(8)(iii), the elimination of the requirement
that the requested start date for the beneficiary be the first day for
the applicable fiscal year in (h)(8)(iii)(A)(4), and the provisions
governing the denial or revocation of H-1B petitions based on
inaccurate, fraudulent, or misrepresented material facts in the H-1B
petition, H-1B registration, or LCA, or in the case of H-2A and H-2B
petitions, the TLC, in paragraphs (h)(10)(ii) and (iii), and
(h)(11)(iii), respectively, published in this rule to be severable from
one another. As explained throughout this preamble, the beneficiary
centric selection process is intended to ensure the fairness in the H-
1B selection process by evening out the odds for the selection of H-1B
beneficiaries by significantly reducing incentives for the submission
of multiple non-meritorious registrations for the same beneficiary.
Further the removal of the requirement that a requested start date for
the beneficiary be the first day of the applicable fiscal year (i.e.,
October 1st) is also a stand-alone provision that can operate
independently of the other provisions of this rule. Codifying the
authority for USCIS to deny or revoke petitions based on false
statements made on the H-1B registration will further ensure that the
H-1B selection process is based on information that is true and
correct.\28\ While these provisions, taken together, will provide
maximum benefit with respect to making the H-1B registration and cap
selection process more equitable while ensuring the integrity of the H-
1B registration process and H-1B program more broadly, the beneficiary
centric selection process provisions are not interdependent with the
provisions providing for denial and revocation of H-1B petitions, and
are able to operate separately. Similarly, the expansion of the denial
provision to cover false statements on the TLC relates to the integrity
of the H-2A and H-2B programs and is independent from and severable
from the H-1B program, and the H-1B beneficiary centric selection
process.
---------------------------------------------------------------------------
\28\ As proposed, and made final in this rule, the denial
provision in 8 CFR 214.2(h)(10)(ii) is also being expanded to cover
false statements on the Department of Labor's TLC (applicable to H-
2A and H-2B programs), and the LCA, and the revocation provision in
8 CFR 214.2(h)(11)(iii) is being expanded to include revocation
based on false statements made in the LCA. As explained in the NPRM,
this would codify DHS's current practices, as the LCA is
incorporated into and considered part of the H-1B petition, just
like the TLC is incorporated into and considered part of the H-2A or
H-2B petition. See 88 FR 72870, 72903 (Oct. 23, 2023). These changes
to 8 CFR 214.2(h)(10) and (h)(11) are independent from the other
changes made in this final rule.
---------------------------------------------------------------------------
V. Statutory and Regulatory Requirements
A. Executive Order 12866 (Regulatory Planning and Review) and Executive
Order 13563 (Improving Regulation and Regulatory Review)
Executive Orders (E.O.) 12866 (Regulatory Planning and Review), as
amended by Executive Order 14094 (Modernizing Regulatory Review), and
13563 (Improving Regulation and Regulatory Review) direct agencies to
assess the costs and benefits of available regulatory alternatives and,
if a regulation is necessary, to select regulatory approaches that
maximize net benefits (including potential economic, environmental,
public health and safety effects, distributive impacts, and equity).
E.O. 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility.
The Office of Management and Budget (OMB) has designated this final
rule a ``significant regulatory action'' as defined under section 3(f)
of E.O. 12866, as amended by Executive Order 14094, but it is not
significant under section 3(f)(1) because its annual effects on the
economy do not exceed $200 million in any year of the analysis.
Accordingly, OMB has reviewed this final rule.
Summary
The purpose of this rulemaking is to amend the regulations relating
to the H-1B registration selection process. Through this rule, DHS is
implementing a beneficiary centric selection process. Instead of
selecting by registration, USCIS will select registrations by unique
beneficiary. Each unique beneficiary who has a registration submitted
on their behalf will be entered into the selection process once,
regardless of how many registrations are submitted on their behalf. If
a beneficiary is selected, each registrant that submitted a
registration on that beneficiary's behalf will be notified of selection
and will be eligible to file a petition on that beneficiary's behalf
[[Page 7477]]
during the applicable petition filing period.
For the 10-year period of analysis of the final rule DHS estimates
the annualized net cost savings of this rulemaking will be $2,199,374
annualized at 3 percent and 7 percent. Table 1 provides a more detailed
summary of the final rule provisions and their impacts.
Table 1--Summary of Provisions and Impacts of the Final Rule
----------------------------------------------------------------------------------------------------------------
Description of final Estimated costs/ Estimated benefits of
Final rule provisions change to provisions transfers of provisions provisions
----------------------------------------------------------------------------------------------------------------
1. Start Date Flexibility for Certain [squ] DHS is Quantitative: Quantitative:
Cap-Subject H-1B Petitions. eliminating all the Petitioners--.......... Petitioners--
text currently at 8 [squ] None............. [squ] None.
CFR DHS/USCIS--............ DHS/USCIS--
214.2(h)(8)(iii)(A)( [squ] None............. [squ] None.
4), which relates to
a limitation on the
requested start date.
Qualitative: Qualitative:
Petitioners--.......... Petitioners--
[squ] None............. [squ] Reduced confusion
DHS/USCIS--............ regarding which start
[squ] None............. date they must put on
an H-1B petition
DHS/USCIS--
[squ] None.
2. Additional Time Burden for the H- [squ] Due to changes Quantitative: Quantitative:
1B Registration System. in the instructions, Petitioners--.......... Petitioners--
adding clarifying [squ] DHS estimates [squ] None.
language regarding that the additional DHS/USCIS--
the denial or time to complete and [squ] None.
revocation of submit the H-1B Qualitative:
approved H-1B registration will cost Petitioners--
petitions, adding $2,376,458 annually.. [squ] None.
information [squ] Although many DHS DHS/USCIS--
collection elements rulemakings include [squ] None.
related to the monetized or
beneficiary centric unquantified
registration familiarization costs,
selection process, DHS believes the
namely the addition of passport
collection of or travel document
passport or travel information will have
document information no likely consequence
and related or add familiarization
instructional costs to existing
language, and burdens to review
verifying such instructions, gather
information before required documentation
submitting a and complete and
registration, this submit the request..
final rule will
increase the burden
per response by 5
minutes.
DHS/USCIS--
[squ] None.............
Qualitative:...........
Petitioners--..........
[squ] None.............
DHS/USCIS--............
[squ] None.............
3. Beneficiary Centric Selection..... [squ] Under the new Quantitative: Quantitative:
rule, each unique Petitioners--.......... Petitioners--
individual who has a [squ] DHS estimates the [squ] None.
registration total annual cost DHS/USCIS--
submitted on their savings to petitioners [squ] None.
behalf will be will be $3,840,822 for Qualitative:
entered into the the registrants' cost Petitioners/
selection process of time. Beneficiaries--
once, regardless of [squ] DHS estimates [squ] DHS believes that
the number of that there will be changing how USCIS
registrations 73,501 fewer conducts the selection
submitted on their registrations due to process to select by
behalf. By selecting this change, resulting unique beneficiaries
by a unique in a $735,010 cost instead of
beneficiary, DHS savings to petitioners registrations will
will better ensure based on those give each unique
that each individual petitioners no longer beneficiary an equal
has the same chance needing to pay the $10 chance at selection
of being selected, registration fee.. and will reduce the
regardless of how DHS/USCIS--............ advantage that
many registrations [squ] None............. beneficiaries with
were submitted on Qualitative:........... multiple registrations
their behalf. Petitioners--.......... submitted on their
While the final behalf have over
passport or travel beneficiaries with a
document requirement single registration
could impact submitted on their
individuals who do not behalf.
yet hold a valid [squ] Selected
passport or travel beneficiaries with
document at the time more than one
of registration, DHS legitimate
has determined the registration would
described benefits of enjoy improved
program integrity flexibility, and
outweigh any greater autonomy in
additional burden to selecting their
prospective employer.
beneficiaries..
DHS/USCIS--............
[squ] None.............
[squ] DHS cannot
forecast with
certainty a
reduction in
administrative
burdens resulting
from fewer selection
rounds. However, the
beneficiary centric
selection process
may reduce the
likelihood that
USCIS will need to
run the selection
process more than
once in a fiscal
year and may achieve
the multiple
benefits discussed
by the commenters.
DHS also
acknowledges the
comments that
running multiple
selection rounds can
negatively affect
beneficiaries who
are already in the
United States and
may not be able to
stay through
multiple selection
rounds, and notes
that the beneficiary
centric registration
process may help
potential
beneficiaries in
this manner as well.
DHS/USCIS--
[squ] None.
[[Page 7478]]
4. Registrations with False [squ] DHS is Quantitative: Quantitative:
Information or that are Otherwise codifying its Petitioners--.......... Petitioners--
Invalid. authority to deny or [squ] None............. [squ] None.
revoke a petition on DHS/USCIS--............ DHS/USCIS--
the basis that the [squ] None............. [squ] None.
statement of facts Qualitative:........... Qualitative:
on the underlying Petitioners--.......... Petitioners--
registration was not [squ] DHS anticipates [squ] None.
true and correct, or that USCIS DHS/USCIS--
was inaccurate, adjudicators may issue [squ] The authority to
fraudulent, or more RFEs and NOIDs deny or revoke a
misrepresented a related to petition on the basis
material fact. registrations with that the statement of
[squ] Additionally, DHS false information facts on the
is codifying its under this final rule, underlying
authority to deny or which will increase registration was not
revoke the approval of the burden on true and correct, or
an H-1B petition if it petitioners and was inaccurate,
determines that the adjudicators. fraudulent, or
fee associated with [squ] USCIS may deny or misrepresented a
the registration is revoke the approval of material fact will
declined, not any petition filed for lead to improved
reconciled, disputed, the beneficiary based program integrity for
or otherwise invalid on those registrations USCIS.
after submission.. with false information
or if USCIS determines
fee payment is
declined, not
reconciled, disputed,
or otherwise invalid
after submission..
DHS/USCIS-- [squ] The authority
[squ] DHS will need to to deny or revoke
spend time issuing due to failed or
RFEs and NOIDs related incomplete payment
to registrations with mitigates the
false information.. incentive to submit
payment only upon
selection of
registrations and
will lead to
improved program
integrity for USCIS.
----------------------------------------------------------------------------------------------------------------
In addition to the impacts summarized above, and as required by OMB
Circular A-4, Table 2 presents the prepared accounting statement
showing the costs and benefits that will result in this final rule.\29\
---------------------------------------------------------------------------
\29\ OMB, Circular A-4 (Sept. 17, 2003), <a href="https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/circulars/A4/a-4.pdf">https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/circulars/A4/a-4.pdf</a> (last viewed June 1, 2021).
Table 2--OMB A-4 Accounting Statement
[$ millions, FY 2022]
----------------------------------------------------------------------------------------------------------------
Time period: FY 2023 through FY 2032
-----------------------------------------------------------------------------------------------------------------
Category Primary estimate Minimum estimate Maximum estimate Source citation
----------------------------------------------------------------------------------------------------------------
Benefits
----------------------------------------------------------------------------------------------------------------
Monetized Benefits.............. N/A Regulatory Impact
Analysis (RIA).
------------------------------------------------------------
Annualized quantified, but N/A............... N/A............... N/A............... RIA.
unmonetized, benefits.
------------------------------------------------------------
Unquantified Benefits........... The purpose of this rulemaking is to improve the RIA.
regulations relating to the H-1B registration selection
process. Through this rule, DHS is implementing a
beneficiary centric selection process for H-1B
registrations. Instead of selecting by registration, U.S.
Citizenship and Immigration Services (USCIS) will select
registrations by unique beneficiary. Each unique
beneficiary who has a registration submitted on their
behalf will be entered into the selection process once,
regardless of how many registrations are submitted on
their behalf. If a beneficiary is selected, each
registrant that submitted a registration on that
beneficiary's behalf will be notified of selection and
will be eligible to file a petition on that beneficiary's
behalf during the applicable petition filing period. The
beneficiary centric selection process for H-1B
registrations will reduce the potential for gaming the
process to increase chances for selection and help ensure
that each beneficiary has the same chance of being
selected, regardless of how many registrations are
submitted on their behalf.
----------------------------------------------------------------------------------------------------------------
Costs
----------------------------------------------------------------------------------------------------------------
Annualized monetized costs (7%). -$2.2 RIA.
Annualized monetized costs (3%). -$2.2
Annualized quantified, but N/A
unmonetized, costs.
------------------------------------------------------------
Qualitative (unquantified) costs DHS expects program participants to comply with program RIA.
requirements, and notes those that do not comply with
program requirements could experience significant impacts
due to this rule. DHS expects that the final rule
prevents registrations with false information from taking
a cap number for which they are ineligible.
If registrants provide false information to gain an unfair
advantage under the beneficiary centric selection
process, DHS anticipates that USCIS adjudicators may
issue more RFEs and NOIDs related to registrations with
false information under this final rule, which will
increase the burden on petitioners and adjudicators.
USCIS may deny or revoke the approval of any petition
filed for the beneficiary based on those registrations
with false information.
----------------------------------------------------------------------------------------------------------------
Transfers
----------------------------------------------------------------------------------------------------------------
Annualized monetized transfers N/A
(7%).
Annualized monetized transfers N/A
(3%).
From whom to whom?
[[Page 7479]]
From whom to whom?
----------------------------------------------------------------------------------------------------------------
Miscellaneous analyses/category Effects Source citation.
Effects on State, local, or None RIA.
tribal governments.
Effects on small businesses..... None RIA.
Effects on wages................ None None.
Effects on growth............... The beneficiary centric selection process will likely None.
increase fairness in the selection process, as well as
enhance the integrity of the selection process overall.
DHS anticipates that this change will also enhance
transparency and predictability in the selection process
by structurally limiting the potential for bad actors to
game the system. As noted in the NPRM, DHS is aware that,
under the registration-based selection process, an
individual's chance of selection with a single
registration is lower compared to beneficiaries who have
multiple registrations submitted on their behalf and is
optimistic that the new beneficiary centric selection
system will increase fairness and help restore trust in
the system.
----------------------------------------------------------------------------------------------------------------
Background
Through this final rule, DHS is finalizing certain provisions
relating to the beneficiary centric selection process for H-1B
registrations, start date flexibility for certain H-1B cap-subject
petitions, and integrity measures related to registration.
Costs, Transfers, and Benefits of the Final Rule
(1) Start Date Flexibility for Certain H-1B Cap-Subject Petitions
DHS is eliminating all the text currently at 8 CFR
214.2(h)(8)(iii)(A)(4), which relates to a limitation on the requested
start date, because the current regulatory language creates confusion
when the petition filing period extends beyond October 1 of the
applicable fiscal year. The removal of this text will provide clarity
and flexibility to employers with regard to the start date listed on H-
1B cap-subject petitions, consistent with existing USCIS practice. This
clarity may help petitioners by reducing confusion as to what start
date they have to put on the petition.
In 2020, USCIS implemented the first electronic registration
process for the FY 2021 H-1B cap. In that year, and for each subsequent
fiscal year, prospective petitioners seeking to file H-1B cap-subject
petitions (including for beneficiaries eligible for the advanced degree
exemption) were required to first electronically register and pay the
associated H-1B registration fee for each prospective beneficiary.
Table 3 shows the number of cap-subject registrations received and
selected by USCIS during Cap Year 2021 through FY 2023. Based on the 3-
year annual average DHS estimates that 127,980 registrations are
selected each year. DHS cannot estimate the number of petitioners that
will benefit from this clarification to the start date on their
petition because USCIS does not currently reject or deny petitions
solely due to the start date not being October 1 of the applicable
fiscal year.
Table 3--H-1B Cap-Subject Registrations Received and Selected by USCIS
[Cap Year 2021 through FY 2023]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total number of Eligible registrations for Eligible registrations for
Cap year registrations beneficiaries with no other beneficiaries with multiple Selections
received eligible registrations eligible registrations
--------------------------------------------------------------------------------------------------------------------------------------------------------
2021....................................................... 274,237 241,299 28,125 124,415
2022....................................................... 308,613 211,304 90,143 131,924
2023....................................................... 483,927 309,241 165,180 127,600
--------------------------------------------------------------------------------------------
3-Year Total........................................... 1,066,777 761,844 283,448 383,939
3-Year Average......................................... 355,592 253,948 94,483 127,980
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: <a href="https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-electronic-registration-process">https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-electronic-registration-process</a> process (Mar. 30, 2023).
In FY 2024 there were 780,884 registrations received, which was a
large increase from previous years shown in Table 4. Of those
registrations, 758,994 were eligible and 350,103 were eligible
registrations for beneficiaries with no other eligible registrations,
and 408,891 were eligible registrations for beneficiaries with multiple
eligible registrations. Table 4 shows the 4-year annual average
including FY 2024. The FY 2024 data shows continued growth in eligible
registrations for beneficiaries both with no other eligible
registrations and those with multiple registrations. While Tables 3 and
4 suggest that growth in multiple registrations may continue in
response to declining odds of random selection in the lottery, DHS
cannot accurately project out what the share of future registrations
will be for beneficiaries with multiple registrations nor how many
registrations might ultimately be submitted for those beneficiaries.
Furthermore, Table 3 shows that the number of eligible registrations
for beneficiaries with no other eligible registrations has continued to
grow for reasons unrelated to the growth in multiple registrations.
Although past growth is not indicative of future trend, it is evident
from the analysis presented in the NPRM and this Final Rule that should
these trends continue, the cost savings estimated in this analysis
would only grow larger, and consequently, DHS continues to use the 3-
year annual (FY21 through FY23) average as the appropriate estimated
[[Page 7480]]
population for this final rule. While DHS considered the FY2024 data
separately, we are not adjusting the RIA to include FY2024 because this
most-recent registration data lacks necessary information on the
verified total number of unique beneficiaries with registrations
submitted on their behalf which this RIA uses to estimate impacts of
the beneficiary centric selection process. DHS incorporated the FY 2024
data into this
[…truncated; see source link]Indexed from Federal Register on February 2, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.