As many of you are aware, the H-1B registration lottery will be conducted in March of this year. Here are the Top 5 Frequently Asked Questions (FAQs) we have received for the upcoming cap season.
1. Is this year's H-1B cap registration process the same as last year?
No. All H-1B cap hopefuls must first file an H-1B "cap registration" between March 7, 2025 and March 24, 2025. Each registration is tied to a specific employer and employee. USCIS will then select lottery winners at the end of March 2025 from among all of the registrations. Lottery winners can file their full petitions during a 90 day window, starting April 1, 2025. There may be one or more additional filing windows later in the year, depending on the number of full petitions filed. This year the filing fee has been increased to $215 per beneficiary.
To address the large number of frivolous filings in the past, the system operates in a beneficiary-based manner that counts each individual one time, regardless of the number of companies that file registrations for that individual. For example, suppose Candidate A files 10 registrations through 10 (unrelated) companies (each with a distinct, bona fide job offer). Candidate B files 1 registration with 1 company. Both Candidates A and B have the same probability of being selected. If A is selected, all 10 employers can file full cap petitions (assuming each has a bona fide job).
USCIS will also closely screen for duplicate filings by affiliated companies, which are prohibited unless each company has a very distinct job offer. Under a new rule that went into effect in January 2025, only petitioners with a bona fide job offer (i.e., a real job with real work expected) can file.
2. Do I have to file a Labor Condition Application (LCA)?
No LCA is required to file an H-1B cap registration. No specific worksite address needs to be listed on an H-1B cap registration. An LCA (with specific worksite address) is only required if a cap registration is picked in the lottery. In that case, the full H-1B petition would be filed, LCA included. In January 2025, USCIS finalize new regulations that once again require client letters (or similar evidence) for H-1B beneficiaries who will work at third party worksites as quasi-employees of an end-client.
3. Can an applicant file multiple registrations?
Nothing prohibits an applicant from filing multiple registrations through different companies, assuming that those registrations relate to real jobs. However, under the current system, applicants have less of an incentive to do multiple filings.
From the employer's perspective, the rules are similar to prior years. A single company cannot file more than one registration for one individual. Related companies cannot file more than one registration for one individual if the filings relate to the same job opportunity.
For instance, suppose a prospective H-1B employee will be working on a consulting project at ABC Inc. (End-Client), through EFG LLC (Vendor) and XYZ Inc. (Employer). XYZ Inc. has a sister company, 123 LLC. Between ABC, EFG, XYZ, and 123, only one company can file an H-1B cap registration for the consultant.
Now suppose that the candidate has an MBA in Accounting and a Bachelor's of Engineering in Computer Science. 123 LLC wants to file for the candidate as an in-house Accountant, while XYZ Inc. wants to file for an IT consulting project at a client site. In this scenario, each company can file a registration for the individual.
4. Who qualifies for the Master's exemption?
As in prior years, 20,000 cap numbers are available for U.S. Master's degree holders. However, not all U.S. Master's degree holders qualify. In order to qualify, a Master's degree must have been issued by a university that was accredited or pre-accredited by a qualifying accreditation agency at the time of issuance. Also, for-profit universities generally do not qualify. Furthermore, universities accredited only by the ACICS (Accrediting Council for Independent Colleges) lost accreditation on August 19, 2022. Many universities offering so-called "Day 1 CPT" were accredited by ACICS.
5. What happens if my company files a cap registration for a candidate, it is picked in the lottery, and we don't file the petition in the 90 day window?
Cap registrations can only be filed if employers have a bona fide need for H-1B candidates. That said, there may be many valid reasons why an H-1B petitioner may not ultimately file a full petition for a cap registrant who is picked in the lottery. USCIS has explained its enforcement priority in this area as follows:
USCIS will monitor the system for potential fraud and abuse (e.g. monitoring the system to determine if employers are submitting many registrations but filing petitions based on selected registrations at a significantly lower rate, which could reflect gaming of the system to unfairly improve their odds of being selected).
So, for example, if an H-1B petitioner has 100 registrations picked in the lottery, and files 99 full petitions, USCIS will not make an issue of it. Conversely, if an H-1B petitioner has 100 registrations picked in the lottery, and files 1 full petition, the company can expect an inquiry from USCIS.
Given the intricacies and potential pitfalls of the H-1B petition process, it's paramount to stress the importance of hiring a competent immigration attorney. An experienced attorney not only guides you through each step but can also foresee and mitigate challenges, ensuring the best chance of a successful application. Investing in the right legal expertise can save both time and resources in the long run, as well as provide peace of mind throughout the application process.