U.S. Citizenship and Immigration Services (USCIS) announced that it received 758,994 registrations for fiscal year (FY) 2024 H-1B cap-subject visas, setting a record—and raising questions about employer fraud.
The agency selected 110,791 registrations to meet the annual H-1B quota of 85,000, equaling a 14.6 percent chance of selection—a new low. USCIS chooses more than the annual numerical limit to allow for applications that aren't approved. USCIS has notified the selected employers, who have until June 30 to submit a full H-1B cap petition for adjudication.
A record-breaking number of registrations is not surprising, but the agency's announcement about significant potential fraud committed by some employers was startling.
Critics of the H-1B lottery program have long suspected that employers have been trying various ways to game the system, from submitting multiple applications for the same person to setting up a structure of contract or consulting-vendor arrangements to file for the same person. But this year, the number of ineligible registrations submitted by multiple employers conspiring together was so high that the problem was publicly addressed.
USCIS said "several dozen small technology companies" colluded to submit registrations for the same 96,000 workers—totaling 408,891 entries—to try to boost their odds of selection in the H-1B lottery. More than half of the total entries are suspect, but the 350,103 eligible entries are still a record, compared with 309,241 last year.
"This data illustrates the need to modernize the U.S. immigration system as stated in SHRM's 2023 workplace immigration research and policy recommendations. Issuing additional employment-based visas in all categories would ensure that petitioners do not attempt to game the system," SHRM said.
The numbers show that "even excluding beneficiaries with multiple potential employers, over 75 percent of H-1B registrations would not have resulted in a high-skilled foreign national gaining H-1B status to work in the United States," said Stuart Anderson, executive director of the National Foundation for American Policy, a public policy research organization based in Arlington, Va. "The attention given to multiple registrations may lead to overlooking the larger issue. The low annual limit on H-1B petitions remains the most serious problem confronting employers attempting to secure foreign-born talent.".
Immigration attorney Andrew Wilson agreed. "It is becoming more and more difficult to rationally explain our H-1B cap lottery system," said Wilson, a partner at Lippes Mathias and co-leader of the firm's immigration practice in Buffalo, N.Y. "How does the volume of registrations justify such a small cap of 85,000 each fiscal year? The numerator stays the same, but the denominator keeps growing and has more than doubled in two years. That math simply does not work anymore for such an important component of our immigration system."
Wilson said potential solutions include reforming the registration system and raising the H-1B cap.
"Congress acted before," he noted. "From fiscal years 2001-2003, the cap was increased to 195,000 based on demand. And the demand now is much higher than it was then. The backlog of unselected applicants will continue to grow, and the number of registrations will continue to get larger."
Anderson said that despite some recent high-profile layoffs, the demand for technology-related positions remains high. "Interest in the visas has stayed strong even despite historic layoffs in the tech sector, in which numerous companies that are heavy users of the H-1B program recently shed tens of thousands of jobs," he said.
Are Multiple Offers Illegal?
It is unlawful for a single U.S. employer to submit multiple H-1B cap registrations for the same person.
"But there is no technical prohibition on a foreign worker having multiple companies submit a registration on his or her behalf, so long as it is predicated on a legitimate job offer that will be brought to fruition if selected," said Amanda Goodman, an attorney in the Austin, Texas, office of Ogletree Deakins. "Nevertheless, USCIS views the actions of these companies as circumnavigating the lottery system by design, with the express purpose of inflating numbers."
Goodman added that USCIS says it is investigating and referring individuals or employers that submitted false attestations to federal law enforcement agencies for potential criminal prosecution.
"USCIS has confirmed its intent to disqualify registrants, including those already selected, if they have engaged in fraud to increase their chances of selection," she said. "USCIS also confirmed that the agency may deny a petition or revoke an approval if it finds that the registration contained a false attestation."
In the long term, USCIS is working on an H-1B modernization rule, which in part would reform the H-1B registration system, Goodman said. An increased registration fee—from the current $10 to $215—is likely to be in effect by next year's lottery.
"It has been contemplated that the current fee does not sufficiently disincentivize duplicate applications," she said.
Experts agree that the relative ease of electronic pre-filing registration—in place since the FY 2021 season—has made the process much more user-friendly, driving up registrations and decreasing the chances of selection.
Another Chance May Be Coming
The allegations of fraudulent filing may be good news to the many employers unable to meet their employment needs. That's because a second lottery could be conducted if USCIS finds enough duplicate entries among the selected registrations.
However, it is unlikely that a decision on a second lottery will be announced until after the petition filing period for selected registrants closes in July.