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H-1B visa final rule changes selection process in effort to prevent fraud



Dive Brief:

  • The U.S. Department of Homeland Security published last week a final rule amending how the U.S. Citizenship and Immigration Services selects H-1B visa program registrants against the agency’s annual cap.
  • Per the rule, DHS will implement a “beneficiary centric” selection process whereby the agency selects H-1B registrations by unique beneficiary rather than by registration. Each beneficiary will be entered into the process once regardless of the number of registrations submitted. The move is an effort to reduce the potential for fraud, Ur M. Jaddou, director of USCIS, said in a Jan. 30 press release.
  • Other provisions of the rule include start date flexibility for some cap-subject H-1B petitions and changes to the registration process, such as requiring a valid passport or valid travel document information. The rule is effective March 4, 2024, two days before the opening of the initial registration period for fiscal year 2025 H-1B cap petitions.

Dive Insight:

The final rule’s provisions are a portion of what DHS included in its October 2023 proposed rule. In that document, for example, the agency said it would amend the definition of “specialty occupation” within the context of the H-1B program, but this is not addressed in the final rule.

In its press release, DHS said it “intends to publish a separate final rule to address the remaining provisions contained in the [proposed rule].”

The latest rule nonetheless addresses a contentious topic for stakeholders in the H-1B process. Throughout 2023, DHS signaled its intent to address criticism that some employers sought an unfair advantage by submitting multiple registrations for identical visa applicants. The agency said last year that of about 758,000 eligible fiscal year 2024 registrations, more than 408,000 included workers with multiple eligible registrations.

In public comments, organizations including the Society for Human Resource Management stated support for the selection process change.

“This measure promises to remedy abuses of the cap selection process that have resulted in considerable unfairness to many employers who followed the rules of the process and were honest in their responses on petition forms and yet may not have had an application selected through the cap selection process,” SHRM wrote in a Dec. 19 public comment.

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