Employers: Time to Begin Planning for the Fiscal Year 2025 H-1B Filing Season

Employers should begin evaluating their H-1B needs for fiscal year (FY) 2025. Each January, US Citizenship and Immigration Services (USCIS) releases dates for the H-1B cap registration processes, with registration generally opening at the beginning of March. While awaiting USCIS’s announcement detailing this year’s cap, employers should review the immigration status of their current and potential foreign national employees and identify any individuals for whom H-1B status might be beneficial.

Individuals who may benefit from being in H-1B status include the following:

• Recent college and university graduates employed in F-1 optional training status
• Candidates abroad who are subject to the annual H-1B cap
• Candidates in another nonimmigrant status (e.g., L-1B) who are approaching the maximum limits of their status and would benefit from a change of status to H-1B
• Candidates currently employed pursuant to an H-4 employment authorization document (EAD) who wish to become independent of their spouse’s H-1B status or who are concerned about continuity of the H-4 EAD program
• Candidates in another nonimmigrant status who work for a different employer and would require an H-1B visa to change jobs
• Candidates in TN, E, or H-1B1 status for whom an employer is considering pursuing permanent residence

USCIS is limited to a congressionally mandated quota of 65,000 cap-subject H-1B visas per fiscal year. By law, 6,800 of those visas are allocated as H-1B1 visas to nationals of Chile and Singapore. 20,000 H-1B visas are available in a separate allotment for foreign nationals who hold a master’s or other advanced degree from a US institution of higher education.

Only those petitions filed on behalf of foreign nationals who have not previously been counted against the H-1B cap in the last six years are subject to the H-1B cap. In addition, H-1B petitions for foreign nationals employed by institutions of higher education, nonprofit research organizations, or governmental research organizations are not subject to the cap.

REGISTRATION FOR CAP-SUBJECT H-1B PETITIONS

In 2020, USCIS implemented a two-step process for the selection of H-1B cap-subject submissions, beginning with electronic preregistration. Under this system, petitioners seeking to file H-1B cap petitions, including those who may be eligible for the advanced degree exemption, must first electronically register with USCIS during a designated registration period and pay a $10 nonrefundable fee for each H-1B registration.

To complete the registration, petitioners will be asked to provide basic information, typically including the following:

• The employer’s name, employer identification number (EIN), and mailing address
• The employer’s authorized representative’s name, job title, and contact information
• The beneficiary’s full name, date of birth, country of birth, country of citizenship, gender, and passport number
• Whether the beneficiary has obtained a master’s or higher degree from a US institution of higher education
• The name of the employer’s attorney or accredited representative, if applicable

The registration period typically begins in early March and generally lasts 14 to 21 days.

RANDOM SELECTION

Once the registration period ends, if USCIS has received enough registrations to reach the cap, it will conduct a random selection process among the registrations received. USCIS received more than 780,000 total H-1B registrations during the FY2024 registration period.

Upon completion of the random selection process, USCIS will individually notify all employers with selected registrations, and only those with selected registrations will be eligible to file an H-1B petition for the FY2025 cap.

The unselected registrations will be kept on reserve for the applicable fiscal year. If USCIS determines that it needs to increase the number of registrations projected to meet the allocation and select additional registrations, the agency will choose from those on reserve.

LIKELY CHANGES TO THE REGISTRATION AND RANDOM SELECTION PROCESSES

On October 23, 2023, the US Department of Homeland Security (DHS), through USCIS, published a notice of proposed rulemaking (NPRM) aimed at “strengthening integrity” in the H-1B registration process. Although a 60-day public comment period is underway and runs through December 22, 2023, USCIS is likely to adopt the regulations in time for the new “beneficiary-centric selection” to take effect during the FY2025 H-1B registration process.

According to DHS, the beneficiary-centric selection process aims to reduce “fraud and abuse” and ensure that each beneficiary has an equal chance of selection. In previous years, beneficiaries were able to benefit from multiple registration entries by increasing their chances at selection with each entry. Once the proposed regulations are adopted, registration selection will be based on each unique beneficiary identified in the registration pool as opposed to each registration. Each beneficiary will be entered in the selection process once, regardless of how many registrations were submitted on their behalf.

The proposed regulations also include a bar on multiple registrations submitted by related entities. Under current rules, only one registration is permitted per beneficiary per petitioner, and no substitution of beneficiaries is allowed. Once the proposed regulations are adopted, related entities will also be forbidden from submitting multiple registrations for the same individual.

FILING

Petitioners may file petitions only on behalf of H-1B beneficiaries whose registrations were selected. USCIS will likely announce a filing window of up to 90 days beginning around April 1, 2024.

If USCIS does not receive a sufficient number of H-1B cap petitions to meet the quota during the initial filing period, as occurred in prior years, a second random selection will be conducted. USCIS will randomly select from among the H-1B registrations that were filed during the March registration period but not selected. USCIS will notify selected employers and their immigration counsel of the results of a second random selection. In 2023, USCIS conducted a second random selection in July.

ACTIONS TO TAKE NOW

Employers should begin assessing their FY2025 H-1B needs now—identifying current and potential foreign national employees for whom H-1B status might be beneficial—in preparation for the registration period. Morgan Lewis’s immigration team is prepared to help employers navigate this year’s H-1B cap season through strategic planning and preparation. By preparing early, employers can collect and organize applicable data to ensure they are ready for this dynamic multistep process.

Employers should also remain alert as to the imminent changes to the H-1B regulations and registration process. We recently published a LawFlash covering the proposed regulations and plan to report on the updated regulations once finalized and adopted.