The Immigration Observer

USCIS Announces H-1B Lottery Numbers Which Suggest Foul Play

On March 27, 2023, U.S. Citizenship and Immigration Services (USCIS) announced that it received enough electronic registrations during the initial registration period to reach the fiscal year 2024 H-1B numerical allocations (H-1B cap), including the advanced degree exemption also known as the master’s cap. Particularly notable during this year’s registration process is that USCIS saw a significant increase in the number of registrations submitted for the FY 2024 H-1B cap compared to prior years, particularly among registrations for beneficiaries with multiple eligible registrations.

The H-1B program allows U.S. employers to employ foreign workers in specialty occupations, which are positions that require the application of specialized knowledge and a bachelor’s degree or equivalent work experience. The H-1B program operates under congressionally mandated quotas, called “caps,” which limit the number of H-1B visas issued per fiscal year. When the number of H-1B visa petitions for a given fiscal year exceeds the mandated quota, USCIS uses a random lottery system to select petitions for review. Historically, potential employers would have to submit complete H-1B petitions to USCIS prior to the lottery, after which USCIS would randomly select eligible petitions for review and return the non-selected petitions at its own cost. This process was inefficient and resulted in unnecessary paperwork and mailing costs for both USCIS and prospective petitioners.

To address this problem, beginning with the FY 2021 H-1B cap, USCIS instituted an electronic registration process that allows petitioners with potential H-1B job candidates to convey and record their intent to file an H-1B petition and have the USCIS conduct a random selection of submitted registrations prior to accepting full submissions. While this process has been effective at streamlining the H-1B cap selection process and reducing costs and inefficiencies for both USCIS and petitioners, the most recent registration cycle suggests that it has created other complications that have obstructed the H-1B process for many legitimate employers and job candidates.

Below is a chart released by USCIS showing registration and selection numbers for fiscal years 2021-2024 (as of April 24, 2023).

*The count of eligible registrations excludes duplicate registrations, those deleted by the prospective employer prior to the close of the registration period, and those with failed payments.

**The number of selections was smaller in FY24 than in prior years primarily due to (a) establishing a higher anticipated petition filing rate by selected registrants based on prior years; and (b) higher projected Department of State approvals of H-1B1 visas, which count against the H-1B cap.

As evidenced by the chart, while USCIS saw a sizable uptick in all registrations between FY 2023 H-1B cap and FY 2024 H-1B cap, confirming that demand for the H-1B visa is high and potentially growing.  A particularly noteworthy figure was the nearly 150% increase in registrations by beneficiaries with multiple eligible registrations, a significantly higher increase over prior years. This has raised serious fraud concerns for USCIS, suggesting that there may be an effort by some to gain an unfair advantage by collaborating to submit multiple registrations by various employers on behalf of a single beneficiary, thus unfairly increasing the beneficiary’s chances of selection. USCIS appears to be aware of the issue and has released the following statement regarding its efforts to address it:

“We remain 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.

We remind the public that at the time each registration is submitted, each prospective petitioner is required to sign an attestation, under penalty of perjury, that:

(a) All of the information contained in the registration submission is complete, true, and correct;

(b) the registration(s) reflect a legitimate job offer; and

(c) The registrant, or the organization on whose behalf the registration(s) is being submitted, has not worked with, or agreed to work with, another registrant, petitioner, agent, or other individual or entity to submit a registration to unfairly increase chances of selection for the beneficiary or beneficiaries in this submission.”

Additionally, USCIS has stated that it may deny or revoke approvals of petitions based on registrations that contained false attestations, and would refer individuals or entities making such false attestations to appropriate federal law enforcement agencies for investigation and further action. USCIS also states that based on data from the FY 2023 and FY 2024 H-1B cap seasons, it is already undertaking extensive fraud investigations and taking the aforementioned actions.

USCIS has also stated that it is working on an upcoming H-1B modernization rule that will propose various improvements, including bolstering the H-1B registration process to reduce the possibility of misuse and fraud in the H-1B registration system. While it is currently unclear what these changes would entail, the most recent H-1B cap registration cycle encapsulates how improving one area of an outdated and inefficient system can have unintended negative consequences for another.