Immigration Service Likely To Change H-1B Visa Lottery

According to U.S. Citizenship and Immigration Services, H-1B registrations set a record for FY 2024 due to multiple entries for the same individuals, which will likely cause the agency to change the H-1B lottery process. Reforms could increase the selection rate in next year’s lottery. However, attention to the registration process obscures a more fundamental issue. USCIS data show due to the low annual H-1B limit, over 75% of H-1B registrations for FY 2024 would have been rejected even if beneficiaries with multiple registrations were excluded from the lottery.

Significant Increase In Registrations

USCIS reported 780,884 H-1B registrations for FY 2024, an increase of 61% over the 483,927 registrations for FY 2023. USCIS uses a lottery whenever companies file more H-1B applications (or registrations) than the annual limit of 85,000 (65,000 plus a 20,000 exemption for advanced degree holders from U.S. universities). After the selection process, employers must submit complete applications, and USCIS must approve them for individuals to gain H-1B status for the coming fiscal year.

USCIS selected only 14.6% of eligible H-1B registrations for FY 2024, based on a National Foundation for American Policy analysis of government data. That compares to 26.9% for FY 2023 and 43.8% for FY 2022. For FY 2021, nearly half, or 46.1%, were selected in the H-1B lottery process.

USCIS attributed much of the significant increase in registrations for FY 2024 to multiple registrations submitted for the same individuals. It is not against the law or immigration rules to have multiple job offers, note attorneys. It is natural in a competitive labor market. However, it could run afoul of the rules or the law depending on the fact pattern.

“The large number of eligible registrations for beneficiaries with multiple eligible registrations—much larger than in previous years—has raised serious concerns that some may have tried to gain an unfair advantage by working together to submit multiple registrations on behalf of the same beneficiary,” according to USCIS. “This may have unfairly increased their chances of selection. 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.”

USCIS noted that “each prospective petitioner is required to sign an attestation, under penalty of perjury.” Among the items attested to is that “the registration(s) reflect a legitimate job offer; and 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.”

USCIS can deny a petition if it discovers an attestation is false. “Furthermore, USCIS may also refer the individual or entity who submitted a false attestation to appropriate federal law enforcement agencies for investigation and further action, as appropriate,” according to USCIS. “Based on evidence from the FY 2023 and FY 2024 H-1B cap seasons, USCIS has already undertaken extensive fraud investigations, denied and revoked petitions accordingly, and is in the process of initiating law enforcement referrals for criminal prosecution.”

USCIS Blames A Small Number Of Unknown Employers

There is no allegation by USCIS that companies that typically have the most H-1B petitions approved each year engaged in wrongdoing. “U.S. Citizenship and Immigration Services . . . said it has found that a small number of companies are responsible for entering the same applicants into the lottery multiple times, with the alleged goal of artificially boosting their chances of winning a visa,” according to Michelle Hackman, a reporter for the Wall Street Journal who first reported the story.

“People familiar with the situation said they are small companies in the tech and information-technology sectors that aren’t household names, some of which were potentially set up with the express purpose of submitting duplicate visa lottery entries,” reported the Wall Street Journal. “The companies have been referred to federal law-enforcement agencies for potential criminal prosecution, a USCIS official said. Though some of the duplicate entries might have been picked in the lottery, which the government ran late last month, officials hope to disqualify visa applicants if they committed fraud to boost their chances.”

USCIS may conduct a second lottery if the agency rejects enough registrations. USCIS selected 110,791 registrations for FY 2024, more than the 85,000 annual numerical limit, to allow for applications that are not approved.

Possible Solutions

USCIS is almost certain to change the H-1B lottery and registration process through regulation or other administrative action. “The H-1B program is an essential part of our nation’s immigration system and our economy, and USCIS is committed to implementing the law and helping meet the ever-changing needs of the U.S. labor market,” according to USCIS. “We are working on an upcoming H-1B modernization rule that will propose, among other improvements, bolstering the H-1B registration process to reduce the possibility of misuse and fraud in the H-1B registration system.”

USCIS has options for addressing the issue of multiple registrations for the same individual. USCIS could limit or orient the lottery to unique beneficiaries based on passport numbers. That would allow an international student, for example, to have both Meta and Google petition for the student but not give them an advantage in the actual selection of H-1B registrations. To combat actual fraud, USCIS could flag and scrutinize employers that never before have filed a large number of H-1B petitions and investigate the validity of the job offers on such petitions.

“Running the H-1B lottery by individual instead of by employer preserves employment flexibility while ensuring an even playing field for everyone,” said Kevin Miner of Fragomen in an interview. “A worker with ten job offers would have the same chance of being selected as a worker with one job offer, and if selected, he or she could then choose which of the ten potential employers will file an H-1B petition for them.”

“If this change is made, it is important that the rules mandate that only one petition could be filed after the lottery selection, so only one H-1B number would be used,” said Miner. “However, it would be the worker who would have the freedom to choose their employer. This would be a fair and simple solution entirely consistent with the statute.”

Problem Remains The Low Annual H-1B Limit

There were 350,103 eligible registrations with only a single employer, or 265,103 more than allowed under the 85,000-annual limit for FY 2024. That means even excluding beneficiaries with multiple potential employers, over 75% of H-1B registrations would not have resulted in a high-skilled foreign national gaining H-1B status to work in the United States. The attention given to multiple registrations may lead to overlooking the larger issue.

Despite some high-profile layoffs, the demand for scientists and engineers in technology-related positions remains high. In March 2023, the U.S. unemployment rate was 1.3% in architecture and engineering occupations and 2.2% in math and computer occupations. Nearly 70% of H-1B visa holders approved for initial employment in FY 2021 earned a master’s degree or higher, according to USCIS. When employers visit U.S. universities to recruit, they find foreign nationals account for 74% of the full-time graduate students in electrical engineering and 72% in computer and information sciences. The argument that H-1B visa holders are “cheap labor” is not supported by the data. The median annual salary for H-1B visa holders in computer-related occupations in FY 2021 was $111,000, and the average salary was $118,000, according to USCIS.

The number of eligible H-1B registrations with only one employer increased by 66% between FY 2022 and FY 2024. That reflects the high demand for talent with technical skills in the U.S. economy. Employers also filed registrations for international students on Optional Practical Training who failed to gain H-1B status in a previous lottery. Employees in L-1 status with expiring eligibility are another source of H-1B registrations, according to Stephanie Pimentel of Berry Appleman and Leiden.

The low annual limit on H-1B petitions remains the most serious problem confronting employers attempting to secure foreign-born talent. Reforming the employment-based green card numbers and the per-country limit is also a high priority for U.S. competitiveness, given the global competition for talent. An H-1B petition remains typically the only way to ensure high-skilled foreign nationals, including international students, can work long-term in the United States.