USCIS H-1B Second Lottery, Those Who Play to Win, and the Lurking H-1B Rule

On July 30, 2024, the USCIS (U.S. Citizenship and Immigration Services) announced it would conduct a second lottery to reach the FY 2025 regular cap numerical allocation.

1. USCIS confirmed however it would not conduct a second selection for the master’s cap as enough master’s cap registrations were already selected and sufficient petitions were received.
2. USCIS detailed that the second round of selection for the regular cap would include previously submitted registrations that indicated eligibility for the master’s cap along with those that indicated only eligibility for the regular cap.
3. On August 5, 2024, USCIS completed the second lottery in selecting a sufficient number of registrations to reach the regular cap from the remaining properly submitted FY 2025 registrations for unique beneficiaries.
4. It is alleged that USCIS failed to curtail misuse and fraud of the H-1B registration process through the additional measures imposed to strengthen the integrity of the registration process for FY 2025.
5. Despite the measures, USCIS implemented to strengthen the integrity of the registration process, new federal data suggests thousands of companies received an unfair advantage by flooding the lottery with multiple entries for the same worker, making it harder for those who played by the rules to receive a registration selection.

Quarles Quick Take: USCIS may feel pressure from certain groups to make additional changes to the H-1B registration process to reduce further gaming of the lottery registration system. Changes may be aimed at staffing or consulting companies.

The proposed H-1B Rule remains on the horizon and lists restrictive measures related to third party placement and how a position may qualify as a specialty occupation.

As another H-1B lottery and the presidential election draw closer, employers may stay ahead of the curve by reviewing H-1B cap nominees and their education credentials early– knowing there is some unknown level of risk in nominating someone for the cap who has a degree not typically considered a requirement for a certain position (such as an MBA for various computer occupations).

Employers may also want to start planning international assignments or exploring the use of various other visa categories to leverage an employee’s continued tenure with the company if they are not selected in the cap. Finally, employers should ensure they know the correct entity where the nominated H-1B worker will work to avoid duplicate entries for the same individual. For those companies that have submitted duplicate entries via various entities for the same worker previously, know there is risk in doing so.

For more information on this recent announcement by the USCIS or if you have any questions, please contact your Quarles attorney or:

• Lynn O’Brien: (202) 372-9530 / lynn.obrien@quarles.com

• Jinly Calloway: (202) 372-9527 / jinly.calloway@quarles.com