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United States | Immigration | USCIS final rule implementing ‘beneficiary centric’ selection process for H-1B registration

United States | Immigration | USCIS final rule implementing ‘beneficiary centric’ selection process for H-1B registration

February 5, 2024

Immigration

United States | USCIS final rule implementing ‘beneficiary centric’ selection process for H-1B registration

Summary
The U.S. Department of Homeland Security (DHS) is amending its regulations to implement the “beneficiary centric” selection process for H-1B registrations, provide start date flexibility for certain H-1B cap-subject petitions, and implement additional integrity measures related to H-1B registration. The purpose of this rulemaking is to improve the H-1B registration selection process. DHS estimates the annualized net cost savings of this rulemaking will be $2,199,374 annualized at 3 percent and 7 percent. This rule will go into effect on March 3, 2024.

The detail

Beneficiary centric Approach

Instead of selecting by registration, U.S. Citizenship and Immigration Services (USCIS) will select registrations by unique beneficiary. Each unique beneficiary who has a registration submitted on their behalf will be entered into the selection process once, regardless of how many registrations are submitted on their behalf.
If a beneficiary is selected, each registrant that submitted a registration on that beneficiary’s behalf will be notified of the beneficiary’s selection and will be eligible to file a petition on that beneficiary’s behalf during the applicable petition filing period.
DHS clarifies the requirements regarding the requested employment start date on H-1B cap-subject petitions to permit filing with requested start dates that are after October 1 of the relevant fiscal year.

Passport or Travel Document Requirement

DHS mandates the beneficiary’s valid passport information or valid travel document information, and prohibits a beneficiary from being registered under more than one passport or travel document.
An example of a valid travel document includes one of the travel documents listed in the Department of State’s reciprocity schedule, please access here: U.S. Visa: Reciprocity and Civil Documents by Country. Therefore, the travel document must be valid for the entry of the applicant into the United States.
DHS is also modifying this provision by adding “or when” to the phrase “if abroad.” This modification is intended to clarify that the passport or travel document must be the same passport or travel document that the beneficiary intends to use to enter the United States, whether the beneficiary is abroad at time of registration or in the United States at the time of registration and will subsequently depart to obtain an H-1B visa and return to the United States to request admission as an H-1B nonimmigrant.
Each beneficiary may only be registered under one passport or travel document. If USCIS determines that registrations are submitted by either the same or different prospective petitioners for the same beneficiary, but using different identifying information, USCIS may find those registrations invalid and deny or revoke the approval of any H-1B petition filed based on those registrations.

Clarity on Petitioner Filing H-1B Petitions
DHS now states that: “A petitioner may file an H-1B cap-subject petition on behalf of a registered beneficiary only after their properly submitted registration for that beneficiary has been selected for that fiscal year.” DHS made this change to eliminate any confusion that the petitioner listed on the H-1B petition must be the same as, or a successor in interest to, the prospective petitioner listed on the registration that was selected.

DHS New Codified Integrity Measures
DHS is implementing integrity measures related to the H-1B registration process, they include:

USCIS’ ability to deny H-1B petitions or revoke an approved H-1B petition where: “there is a change in the beneficiary’s identifying information from the identifying information as stated in the registration to the information as stated in the petition; the underlying registration contained a false attestation or was otherwise invalid; the registration fee was invalid; or where the H-1B cap-subject petition was not based on a valid registration.”
USCIS’ authority to deny an H petition where the statements on the petition, H-1B registration, labor condition application (LCA), or temporary labor certification (TLC), as applicable, were “inaccurate, fraudulent, or misrepresented a material fact, including if the attestations on the H-1B registration are determined to be false.”
USCIS’ ability to revoke an approved H petition where the statements on the petition, H-1B registration, TLC, or the LCA, as applicable, were “inaccurate, fraudulent, or misrepresented a material fact, including if the attestations on the H-1B registration are determined to be false.”

What this means
Employers will need to adapt to these new rules when it comes to filing H-1B registrations and H-1B cap-subject petitions. These include: (1) filing registrations for H-1B applicant based only on unique beneficiaries, and it will apply after October 1 of each fiscal year; (2) the beneficiary’s valid passport information or valid travel document information must be included in the petition and it must be the same passport or travel document the beneficiary intends to use when entering the US; and (3) the petitioner listed on the H-1B petition must be the same as the prospective petitioner listed on the registration that was selected.

Contact us
Please reach out to:

Manish Daftari
Partner

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