Type: Law Bulletins
Date: 01/30/2024

Immigration Alert for Employers: The 2025 H-1B Cap Season is Approaching With Possible Changes on the Horizon

U.S. Citizenship and Immigration Services (USCIS) will soon announce the fiscal year 2025 H-1B cap lottery process. Taft’s Immigration practice group encourages U.S. employers to identify current and future employees who will need H-1B visa status in 2025.

Interested employers should be aware that a new USCIS Final Fee Rule could be published within the next few weeks, which would raise the H-1B electronic registration fee from $10 to $215, an increase of 2050%, and the H-1B petition filing fee from $460 to $780, an increase of 70%. During a recent USCIS public engagement activity, USCIS confirmed the H-1B electronic registration fee will not go into effect this year. However, the H-1B petition filing fee increase could be in effect by the time H-1B petitions can begin to be filed for selected registrations.

Additionally, employers should note that USCIS recently issued a Notice of Proposed Rulemaking (NPRM) to amend H-1B regulations to, in its words, “modernize and improve the efficiency of the H-1B program, add benefits and flexibilities, and improve integrity measures.” The Department of Homeland Security (DHS) describes the changes made by the NPRM, as follows:

  • Streamlining eligibility requirements – criteria for specialty occupation positions would be revised to reduce confusion between the public and adjudicators and to clarify that a position may allow a range of degrees, although there must be a direct relationship between the required degree field(s) and the duties of the position.
  • Improving program efficiency – the proposed rule codifies that adjudicators generally should defer to a prior determination when no underlying facts have changed at the time of a new filing.
  • Providing greater benefits and flexibilities for employers and workers – select exemptions to the H-1B cap would be expanded for certain nonprofit entities or governmental research organizations as well as beneficiaries who are not directly employed by a qualifying organization. DHS would also extend select flexibilities for students on an F-1 visa seeking to change their status to H-1B. Additionally, DHS would establish new H-1B eligibility requirements for rising entrepreneurs.
  • Strengthening integrity measures – in addition to changing the selection process, misuse and fraud in the H-1B registration process would be reduced by prohibiting related entities from submitting multiple registrations for the same beneficiary. The rule would also codify USCIS’ authority to conduct site visits and clarify that refusal to comply with site visits may result in denial or revocation of the petition.

As referenced in the final bullet point, the NPRM contains a provision that would change the way USCIS selects H-1B cap registrations. Instead of selecting by employer registration, USCIS would select registrations by unique beneficiary.

Both the fee increase and H-1B amendment provisions require a USCIS-issued final rule to go into effect. The proposed rule may be revised before final rule publication.

Employers seeking H-1B status for current or potential employees should contact the Taft Immigration team to avoid missing the H-1B “cap season” and to stay up-to-date on H-1B fees and governing regulations.

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