As published in the Immigration Daily on February 12, 2024

DHS’s February 2, 2024, final rule for H-1B registration, “Improving the H-1B Registration Selection Process and Program Integrity”, included the most important attempt at reform of the H-1B registration system – adding fairness – one beneficiary, one chance. The system will now be beneficiary-centric under which the beneficiary will have one chance of being selected regardless of how many organizations apply for him or her. The system to be replaced allowed multiple organizations to sponsor candidates for registration, in effect giving many candidates more selection chances. Over the years since the first registration in 2020 for the FY-2021 H-1B cap, gaming of the system became endemic as the unscrupulous saw little penalty in conspiring to give applicants more company sponsorships, and the number of registrations zoomed from 274,237 in FY- 2021 to 308,613 in FY-2022, 483,927 in FY-2023, and in the last year, 780,884 for FY-2024. Without the intervention, registrations could conceivably have topped 1 million for this year.

The rule outlines timing and procedure for this year’s registration:

Timing –

  • Registrants will be able to create new accounts beginning at noon Eastern on 2/28/24.
  • Representatives may add clients to their accounts at any time, but both representatives and registrants must wait until 3/6/24 to enter beneficiary information and submit the registration with the $10 fee.
  • The initial registration period will open at noon Eastern on 3/6/24 and run through noon Eastern on 3/22/24.
  • USCIS intends to notify account holders and upload selection notifications to their accounts by 3/31/24.

Procedure –

  • The $10 fee remains for this year (it is projected that the registration fee will rise to $215 next year).
  • The process will be beneficiary-centric instead of organization-centric.
  • Online filing of non-cap Form I-129’s (Petition for a Nonimmigrant Worker) and associated I-907’s (Request for Premium Processing Service) will begin on 2/28/24.
  • Online filing of H-1B cap cases and associated I-907’s begins on 4/1/24.
  • USCIS will transition paper filing location for H-1B and I-907 petitions from service centers to the USCIS lockbox with the new filing locations to be announced in March.

To further combat fraud in the registration process, participating applicants must have a valid passport or travel document at the time of registration. Without such, they cannot participate. While renewal of the passport or travel document can be done later, the final rule says that “Such circumstances could include… a change in passport number or expiration date due to renewal or replacement of a stolen passport, in between the time of registration and filing the petition.”  Other parts of the rule have words like “requiring valid passport or travel document information” … “While DHS recognizes that some individuals may not possess a valid passport or travel document, DHS has a strong interest in requiring passport or travel document information for each beneficiary….”

Emphasis was also placed upon this in the USCIS email announcement on January 30, 2024, specifying that, “USCIS will require registrants to provide valid passport information for valid travel document information.”

This year promises to be much different from past registration years. USCIS has already projected a much smaller number of registration applications than last year that will turn into a higher number of successful registrations if USCIS selects in the same average range of numbers as in the three years prior to the past year. So organizations and applicants interested in cap H-1B petitions should get ready for an interesting ride beginning this month.

It should be noted that unless the new January 31, 2024, final rule on fee increases, “US Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements” is delayed or stopped by legal action, most organizations with selected registrants will have to pay enhanced fees to file H-1B petitions. For most nonprofits, the fees will remain the same. For small for-profit employers (25 or less full-time employees in the United States), the increases will be less, while those on larger for-profit employers (with 26 or more full-time employees in the United States) will be more. In addition to the regular add-ons ($500 fraud fee and either $750 or $1500 job training fee), both of the latter categories will have to pay a $600 asylum program fee, and the larger for-profit employers an enhanced $780 I-129 fee instead of the regular $460 fee. Fee increases are slated to go into effect on April 1, 2024.

Arthur Lee, Esq. Q&As published on the World Journal Weekly on February 4, 2024 : 1. When the quota limit is reached, the visa bulletin dates do retrogress 2. Should Change Job Affect the Validity of an Approved NIW? 3. NIW Approved But PD not Current, May Come to the US With B1/B2 for a Meeting 4. My I-140 has been Approved for More Than 180 Days but Was Laid Off.  Will it Be Possible to Retain the Priority Date and Transfer to B-1 to Look For a Job? 5. Submit EB-1A and I-485 need Paystubs and Tax Returns

1. When the quota limit is reached, the visa bulletin dates do retrogress

A reader asks:
It is said that quotas for the next fiscal year will be released in October this year and the schedule will be advanced. However, I have seen many forecasts saying that the schedule is likely to be advanced by 2-4 months. Currently, China’s EB-1A List A is in February 2022. If the new fiscal year starts only 2-4 months ago, shouldn’t this schedule be getting longer and longer and never disappear? I heard that India’s EB-1A schedule has gone back to 10 years ago. I don’t understand. If you can’t handle it, just stop. Why is it going backwards?

Arthur Lee Esq. answers,
At the time of answering this question (January 2024), the EB-1 China Final Action Date is July 1, 2022. As you are probably aware, the visa bulletin dates do not work in a straight line corresponding to calendar dates. Indeed, they sometimes do retrogress. This is due to the fact that Congress sets limits on the number of immigrant visas that can be issued each year (usually 675,000 across all visa categories, and 140,000 for EB-categories), and divides them among foreign nations. It is possible for countries to be oversubscribed—have more visas demanded for specific categories than visas available for the year. This is often the case with EB-categories with respect to China and India. According to the USCIS website, visa retrogression occurs when more people apply for a visa in a particular category or country than there are visas available for that month—and retrogression typically happens toward the end of a fiscal year. The cut-off dates of the visa bulletin are determined by the Department of State after consideration of variables including number of visas used to that point, projected demand for visas, and number of visas remaining under the annual numerical limit for that country/preference category. For India, the EB-1 category is actually up to September 1, 2020 for Chart A. However, when a date retrogresses, it typically means that the Department of State is oversubscribed to the point that there is no visa available for the date that was posted on the visa bulletin for the previous month. DOS/USCIS are then not able to adjudicate cases from a specific priority date (although it had reached that date previously) due to unavailability of visas to fill that date while still granting visas from dates prior to that date.

2. Should Change Job Affect the Validity of an Approved NIW?

The NIW was approved recently, the priority is current, and the I-485 has just been submitted. Can I change jobs in this situation? I have a good job opportunity and want to go to the same industry with the same job content.

Arthur Lee Esq. answers,
Since an NIW does not require a job offer or labor certification, changing employers should not affect the validity of your approved I-140 NIW and you should be able to change jobs without affecting the approvability of your I-485 assuming that your next job is in your proposed field of endeavor stated in your NIW application. Since your job will be in the same industry with the same type of job description, it would be appear acceptable for you to switch to this other opportunity. This answer assumes that you self-petitioned on your EB-2 NIW. If you had an employer petition for you on your EB-2 NIW, you may encounter difficulties with USCIS if you change positions at this time although you may be eligible to port your case 180 days after the I-485 has been filed.

3. NIW Approved But PD not Current, May Come to the US With B1/B2 for a Meeting

A reader asks:
I am planning to work in Canada for a short period of time after applying for NIW. Before I get the priority date of I-140, am I inclined to immigrate? Can I apply for a B1/B2 and come to the United States for a meeting during the waiting period?

Arthur Lee Esq. answers,
I assume that you mean that you have already applied for an NIW and secured a priority date, but it is not yet current. In this case, you would ordinarily wait until your priority date becomes current, assuming your NIW is approved, before you immigrate. This is unless you have another means of immigrating, such as an immediate relative petition or a current family-based petition; or if you come in on a dual intent visa such as an H-1B or L-1 which allows you to have an immigrant intent when you enter the United States. If you need to come to the US for a meeting, you can do so on a B1/B2 visa. However, due to your pending I-140 which shows your intent to eventually immigrate, you will need to clearly demonstrate to a consular officer that you will depart the country and return home after your B-1/B-2 period of stay is over. You can do so by showing that the main purpose of your trip is this business meeting which is a permissible activity under B-1, and that you have ties to your home that you intend to return to such as family, lease or deed, job, and a return plane ticket.

4. My I-140 has been Approved for More Than 18o Days but Was Laid Off.  Will it Be Possible to Retain the Priority Date and Transfer to B-1 to Look For a Job?

A reader asks:
It has been more than 180 days since my I-140 was approved, and the priority date has more than half a year to wait, but I was laid off. If I can’t find a new job within 60 days, transfer to B-1 and continue to look for a job. After finding a job, can I use H-1B transfer to continue to keep the priority date?

Arthur Lee Esq. answers,
You will be able to retain your priority date as long as your approved I-140 is not revoked for fraud, misrepresentation or material error, and your labor certification was not revoked or invalidated. This is regardless of whether you are in or outside the United States. If you fall outside your 60 day grace period in finding a new job after you were laid off, you may apply for a B-1 change of status. Just ensure that your I-539 change of status application is filed before the end of your grace period. During your time in B-1 status, you are allowed to interview for a job. Once you are hired at a position, then you must file an H-1B transfer to your new employer.

5. Submit EB-1A and I-485 need Paystubs and Tax Returns

A reader asks:
I would like to ask, do the recently submitted EB-1A and I-485 still need a three-month paystub or a three-year or one-year W2 or IRS transcript?

Arthur Lee Esq. answers,
Generally, it is a good idea to submit your 3 most recent pay statements and copy of your most recent tax return and W-2. These documents should be submitted to prove that you will be working in your field of expertise as stated in the I-140 and that you will not be a public charge. If you are not working in your field of expertise, you should include evidence that you will be working in your field of expertise such as a signed statement that you intend to work in the field stated in your I-140 along with supporting evidence showing that you are still engaged in that endeavor. If you do not meet the federal poverty guidelines in your most recent tax return for your household size, you may wish to get a financial cosponsor.