USCIS Proposes New Selection Method to Curb H-1B Lottery Abuse

One of the most significant changes in the recent proposed rule regarding the H-1B visa program is the proposal to modify the lottery registration selection system to reduce fraud in the first step of the H-1B process.

Three years ago, U.S. Citizenship and Immigration Services (USCIS) debuted an online registration system where employers seeking to employ H-1B workers subject to the annual cap can file a simple registration for each requested worker. Selected registrations are then entered into a lottery to determine who can file H-1B petitions. Electronic registration replaced submitting a complete H-1B petition for entry into the lottery, which was much more burdensome for employers and USCIS.

Many observers have long suspected that employers have been trying various ways to game the H-1B lottery system, even before the introduction of the registration step, 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. And experts predicted that the relative ease of the registration process would make fraud even more attractive.

Earlier 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" 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. That's over half of the 758,994 total registrations filed.

"Regulations prohibit the filing of multiple registrations by a single employer on behalf of the same individual employee, but they do not prohibit the filing of multiple registrations by different prospective employers on behalf of the same individual," explained Adam Moses, senior counsel at Harris Beach in New York City. "According to USCIS, since 2020, the number of individuals with multiple registrations has grown significantly, as has the overall number of registrations, thereby slanting the odds of selection in favor of those beneficiaries with multiple potential job offers."

Andrew Wilson, a partner at Lippes Mathias in Buffalo, N.Y., said attorneys had speculated that the way the registration process was laid out would invite the practice of multiple but related employers filing for the same beneficiaries. Employers collude on sharing the person's name during registration and plan some kind of contracting arrangement if successful, he said.

"I came across one worker who said he had 12 registrations put in for him, and [he] only knew about seven," Wilson said.

"The registration system has spawned unheard-of levels of abuse - the situation has become intolerable," said Alan Lee, an immigration attorney in New York City. "USCIS statistics from the previous year even showed one beneficiary with 83 registrations."

The proposed rule would change how USCIS conducts the H-1B registration selection process to reduce the possibility of misuse and fraud by introducing a worker-centric selection model, rather than an employer-centric model.

"USCIS proposes to change the random selection process to select from a pool of unique beneficiaries, rather than from a pool of registrations," Moses said. "In other words, no matter how many registrations a person has filed on their behalf, their name will have the same odds of selection as another individual who has only one registration filed on his or her behalf. If a beneficiary is selected who has multiple registrations filed on his or her behalf, the beneficiary will have to choose which one to use."

Essentially, each person with a submitted registration would be entered into the selection process once, regardless of the number of registrations submitted for them, improving the chances that a legitimate registration would be selected, according to USCIS. The agency also proposes to clarify that related entities are prohibited from submitting multiple registrations for the same person.

"It is absolutely the right thing to do to even the playing field," Wilson said. "An employer playing by the rules and submitting one registration competing against other employers putting in 12 registrations for the same person isn't fair."

Up Against the Clock

Business immigration practitioners generally welcome the registration change but worry that there won't be enough time for USCIS to issue a final rule before the next H-1B filing season begins in early 2024. The comment period on the proposed rule ends Dec. 22, and deliberations for a final rule typically take months.

"I'm hoping this part of the proposed rule will be put in place sooner rather than later, so we don't have the situation we had last year repeat itself," said Angelica Ochoa, a partner in the Denver office of Fisher Phillips.

USCIS understands this sentiment and mentioned that multiple final rules could come from the proposed rule, with the anti-fraud registration provision being a priority.

"USCIS has expressed particular interest in changing the registration system in time for the fiscal year 2025 selection," said Leslie Dellon, senior attorney at the American Immigration Council in Washington, D.C. "However, since this would require the agency to issue a final rule and have a functional system by the spring of 2024, it seems more likely that USCIS could finalize a rule but delay the start date for the new registration system until a later fiscal year."

USCIS said that any change would depend on agency resources.

"There appears to be doubt expressed in the proposed rule that the system change will be done on time," Lee said. He added that USCIS cannot predict with certainty even when the final rule would be published and may need to delay the effective date of the registration system change if it determines that it does not have sufficient time to ensure proper functionality of the selection process, including completing all requisite user testing.

Lee added that the effective date may be postponed for other reasons as well, such as to avoid confusion that could result if the final rule took effect too close to the start of the registration period for the upcoming cap season or to avoid disparate treatment of registrations if the final rule took effect in the middle of the filing season.

Once the proposed change is in place, however, the number of registrations is expected to decrease significantly, giving employers a much better chance of sponsoring an H-1B worker.

Many employers will likely approve of the change to selecting H-1B registrations by unique beneficiary, said Stuart Anderson, executive director of the National Foundation for American Policy in Arlington, Va. However, he noted that the controversy over multiple registrations obscures a stark reality for employers: Due to the low annual H-1B cap, USCIS would have rejected over 75 percent of H-1B registrations this year even if workers with multiple registrations were excluded from the lottery.

"H-1B visas are highly sought after," Ochoa said. "Even without the fraud and collusion, the real demand is very high and the chances of getting an H-1B are becoming less each year. Any regulatory change to enhance integrity and prevent misuse of the program will be gladly received by employers."