Quick Takeaways
- Nearly 800,000 Registrations submitted in this year’s lottery, approximately 110,000 selected.
- Less than 50% of Registrations – approximately 350,000 – were the sole submission for a single worker.
- More than half of all Registrations – approximately 408,000 – were one of several submissions for the same worker.
- Potential for a second round of selections, and criminal indictments for certain companies, on the horizon.
When our Firm, and others, experienced remarkably low H-1B Cap selection rates at the end of March, it seemed clear that USCIS had received an exceedingly high number of Registrations for this upcoming Fiscal Year’s H-1B quota. Many practitioners suspected there had been some gaming of the H-1B Registration system through the submission of multiple Registrations for the same worker, with or without a bona fide, individual job opportunity available for every Registration submitted. At the end of last week, USCIS released figures that confirmed these hunches, and much more, which could ultimately lead the Service to conduct a subsequent drawing, amend the H-1B Registration process moving forward, and refer egregious abusers for criminal investigation.
On Friday, USCIS advised that it received 780,884 Registrations during this year’s filing period – a record amount that represents a more-than-60-percent increase from last year’s record tally of 483,927. USCIS notes that of these 780,884 Registrations, 21,890 were eliminated for either being duplicate filings, withdrawn before selection, or having a payment failure. As such, only 758,994 Registrations went into this year’s drawing, from which USCIS selected 110,791 Registrations to meet the Fiscal Year 2024’s yearly allotment of 85,000 new H-1B Visas. Based on those figures, this year’s acceptance rate was approximately 14.6% overall. By comparison, in March 2022, USCIS selected 127,600 Registrations from a pool of 474,421 eligible submissions, which rendered a selection rate of almost 27% for Fiscal Year 2023.
USCIS provides further details regarding the 758,994 Registrations it deemed eligible for selection. As opposed to 309,241 for Fiscal Year 2023, this year’s Cap Lottery saw 350,103 Registrations filed for single individuals without any other Registrations filed on their behalf. However, that means that 408,891 Registrations, or approximately 54% of all filings, were for individuals with multiple Registrations submitted on their behalf, a massive increase from last year’s total of 165,180 (approximately 35%).
Based on the relative ease and lowered cost of submitting an H-1B Cap Registration versus a full filing (as was the case pre-March 2020), it is no surprise that the total number of H-1B Registrations submitted would continue to grow. And with the increased number of Registrations being submitted, it also makes sense that a foreign national worker may seek to better their odds by having more than one potential employer submit an H-1B Cap Registration on their behalf. Indeed, so long as each employer has a bona fide, individualized job offer for a foreign national worker – and not, say, one employer for a job and then five contractors for the same job for that employer – there is nothing inherently wrong with a worker having more than one H-1B Cap Registration submitted on their behalf.
Yet, the intense increase in Registrations and the proportion of those Registrations being for individuals with several submissions filed on their behalf, raises serious concerns regarding the integrity of the H-1B Cap Registration system and its vulnerability to abuse. In fact, it has been made clear that those 408,000 H-1B Registrations only covered approximately 96,000 foreign workers, and that a half-dozen or so companies, in particular, amounted to a large fraction of those filings. In the wake of these findings, USCIS officials have confirmed that several companies have been referred to law enforcement authorities for further investigation and, potentially, criminal prosecution.
Moving forward, it is quite likely that USCIS will need to conduct an additional selection to meet its 85,000 quota. Moreover, if criminal indictments are handed-down, it could deter similarly-situated employers from engaging in the same level of rampant abuse in years to come; or, it could be cited as grounds for overhauling the H-1B Cap Registration system – say, by having individuals, and not employers, submit their own H-1B Cap Registrations that they can take to employers, if selected. In any event, our Firm will continue to provide updates on this situation as it evolves, and we remain on standby to answer any and all questions regarding the H-1B Cap process. With that in mind, please do not hesitate to reach-out to Green and Spiegel if you have any questions or concerns.
