2024 H-1B Cap Season – Quota, Timeline, Requirements; Lottery Registration Window Opens March 6; Beneficiary-Centric Selection Process Announced

The new H-1B work visa “cap” season is set to begin by using the same lottery process introduced and used over the past four years. The lottery registration window will open on March 6, 2024 and will remain open until noon eastern time on March 25, 2024 March 22, 2024.  

March 21 Update:  the deadline for submission has been extended to March 25, 2024.

This is the fifth year since U.S. Citizenship and Immigration Services (USCIS) changed the process of submitting first-time H-1B “cap” work visa petitions by creating a lottery pre-registration system. As in prior years, the lottery allocation will be based on random selection.  However, new this year is a “beneficiary centric” selection approach where each individual will be given a single lottery registration slot regardless of how many employers submit a lottery registration for the candidate.   Also, this year the filing fees will increase.

Quick Introduction: The H-1B Cap Registration System

The H-1B cap filing will be done in two stages. First, there will be a H-1B work visa registration period where all petitioners seeking to file an new cap H-1B will have to submit an online registration for each beneficiary. The lottery registration window will be open for submissions between March 6, 2024 and  March 22, 2024.

Timing of the H-1B Cap Entry Submission.  Lottery registration opens on March 6 and will be open for 3 weeks.  We do not recommend waiting until the last day to submit lottery registration entry to avoid last-minute website crashes, etc.

What Information Will be Required for Each Electronic Entry?   For each H-1B cap visa entry, USCIS will require (1) the employer’s name, employer identification number (FEIN), and address, (2) employer’s representative contact information; (3) the beneficiary’s full name, date of birth, country of birth, country of citizenship, gender, and passport number; (4) whether the beneficiary has obtained a master’s degree from a U.S. institution of higher education;  and (5) employer’s attorney information.

Even though the information required for an H-1B cap lottery registration is not very extensive, we recommend employers conduct a thorough case evaluation before submitting a lottery entry. For instance, we recommend analyzing the proposed position for specialty occupation and salary/prevailing wage H-1B eligibility. We recommend reviewing the candidate’s credentials thoroughly to properly determine the best cap – regular or U.S. master’s degree – to be used for the registration as this cannot be changed later. We also recommend identifying any timing issues such as F-1 OPT cap-gap, CPT, etc. which may require an urgent filing with USCIS if selected by the lottery.

Lottery Logistics and Order of Selection. Towards end of March USICS will allocate the 85,000 H-1B visa numbers (65,000 plus 20,000 for U.S. master’s degree or higher holders) among the registrations and if the registrations exceed 85,000, there will be a random lottery. USCIS will first combine all cap cases (U.S. master’s and regular cap) and allocate towards the 65,000 general cap and then the remaining U.S. master’s degree applications will be allocated towards the 20,000 U.S. master’s cap.

What Will Selected H-1B Cap Entries Have to Do?   Once an employer or their attorney receives a selection notice (by March 31), the employer will then be given a period of 90 days to properly file a complete H-1B cap petition.  USCIS may specify different filing windows in an attempt to stagger the filings and to allow for most efficient petition processing and the filing window will be indicated on the H-1B cap selection notification.  The H-1B cap petition will need to include evidence of the random selection and will have to meet all other H-1B cap requirements, including LCA, proper filing fees and forms, and supporting documents.

How Does USCIS Intend to Prevent “Flooding” the System?  USCIS has taken steps to prevent employers from “flooding” the system in an attempt to gain a higher likelihood of selection.  Since there is only $10 registration fee to submit an entry and since this submission is simpler/less expensive than previous years, there were concerns that the demand for H-1B cap petitions may actually be dramatically higher compared to prior years. These fears turned out to be absolutely correct over the past years — below is the number of registrations submitted over the last few years.  

USCIS (and all of is who are deeply involved in the process) is mostly concerned by the sharp increase by registrations for the same candidate by multiple employers and the possibility of fraud involved in submitting multiple registrations for the same candidate by different affiliated employers.

Restrictions and Scrutiny on Multiple Registrations for the Same Candidate

As a reminder, related employers are prohibited from submitting H-1B cap registrations on behalf of the same candidate during a fiscal year.    USCIS has been trying to remind employers of the relevant rules at the beginning of each H-1B “cap” season but the rules and attestations required often seem to be missed or ignored.  Specifically, USCIS added an attestation by employers that reads:

I further certify that this registration (or these registrations) reflects a legitimate job offer and that I, or the organization on whose behalf this registration (or these registrations) is being submitted, have not worked with, or agreed to work with, another registrant, petitioner, agent, or other individual or entity to submit a registration to unfairly increase chances of selection for the beneficiary or beneficiaries in this submission.

Please see our article on this topic for more information.

Beneficiary-Centric Selection Process Introduced This Year

Starting this H-1B cap year, USCIS will change the selection process to a beneficiary-centric selection approach.   What that means is that each H-1B employee will be counted only once for H-1B cap registration lottery selection purposes regardless of how many (legitimate) H-1B cap registrations they have from multiple employers.    USCIS is not strictly prohibiting multiple registrations for the same candidate by multiple employers; however, the candidate will have only one lottery entry and, if selected, all H-1B employer registrants will be notified of selection.    

As a result, USCIS is removing the incentive of filing multiple registrations by multiple employers in order to increase the chances of selection.    A candidate who has multiple registrations and is selected will now be able to file H-1B petition from any or all of the registrant employers.   

Please see more in our detailed alert on the change to the beneficiary-centric selection process.

New Higher H-1B Petition Filing Fees for This Year and New (Much Higher) Registration Fee to Go Into Effect from Next Year (March 2025)

USCIS is also raising the filing fees across most application types as of April 1, 2024.    For this H-1B cap season, the registration fee remains unchanged at $10 while the petition filing fees for most employers would go up by a few hundred dollars (depending on size and type of employer).    For next H-1B cap season (starting March 2025), the H-1B cap registration filing fee will go up to $215 as well.

2024 H-1B Cap Timeline: Cap Season Starts Earlier This Year

The H-1B cap timeline for employers looking to sponsor H-1B cap visa for this year is slightly earlier than under the pre-lottery system. Note that the fact that the H-1B cap registration period stars on March 6 means that the H-1B cap season starts earlier this year. Unlike in prior years, an H-1B case this year must be initiated by early March.

December/January – early March: Case Evaluation and Lottery Registration Prep.
Identify candidates. Evaluate position for specialty occupation and prevailing wage (salary, worksite, position requirements). Evaluate candidate education and determine regular or master’s cap. Evaluate timing issues – F-1 OPT cap-gap, CPT, etc. Employer FEIN registration (for first-time H-1B petitioners). File LCAs for time-sensitive cases.

Early March (March 6 through mid-March): Lottery Registration Submission
Submit electronic H-1B cap registration application.

End of March: USCIS Announces Selections; File LCAs.
USCIS conducts random lottery. USCIS sends electronic notifications of selected cases. Prepare and file LCAs for selected cases.

April 1 – May/June: File H-1B Petitions.
Prepare and file full H-1B cap petition with evidence of lottery selection and all supporting documents.

Summer (likely July): Second Chance Lottery (if needed)
USCIS conducts “second chance” to allocate any unused H-1B visa numbers for cases selected under the March lottery but which were not filed within the 3-month filing window.

Late Fall (likely November): Third Chance Lottery (if needed)
USCIS conducts “third chance” to allocate any unused H-1B visa numbers for cases selected under the March and July lotteries but which were not filed within the 3-month filing window. We had a third lottery in 2021 but not in 2022 and 2023.

Background of the H-1B Program and Its Annual Cap

The H-1B visa category was created in 1990 through the Nationality and Immigration Act of 1990 (INA).  Upon the creation of the H-1B visa type,  INA imposed a numerical limitation (“cap”) on the number of H-1Bs that could be issued in each fiscal year.  This “cap” (or quota) has varied over the past years but is set to 65,000 per year for FY2025 starting on October 1, 2024.

H-1B is a nonimmigrant visa classification used by U.S. employers to hire a foreign national who will be employed temporarily in the U.S. in a specialty occupation (generally one which requires a bachelor’s degree or higher) or as a fashion model.  Each year, by law, USCIS can approve up to new 65,000 H-1Bs, thereby allowing many private and employers to hire temporary qualified workers.   H-1B non-immigrants who work at (but not necessarily for) universities and non-profit research facilities are excluded from the numerical cap (see below for discussion of cap-exempt employers).

There are certain exceptions to the congressionally-mandated maximum of 65,000 H-1B visas per fiscal year.  20,000 H-1B visas issued to alien workers who obtained their master’s degree or higher from a U.S. university are exempt from the 65,000 cap;  H-1B visas issued to such U.S. master degree or higher holders subsequent to the first 20,000 are then counted against the overall 65,000 cap.    Additionally, the cap does not apply to foreign nationals in the U.S. who are in lawful H-1B status and who are seeking to extend their visa or change employers.

Major Topics and Issues for This H-1B Cap Year

USCIS continues to exercise additional scrutiny compared to prior years and especially focusing on certain areas. The rate of requests for evidence (RFE) for H-1B cap cases have been increasing over the past years and the areas with most scrutiny are (1) entry-level positions which are consistent with payment of “Wage Level I” salaries, (2) positions where a bachelor’s degree in a specific field is not always required (the “specialty occupation” issue – see our article on this topic), (3) availability and documentation of end client work for third-party worksite locations, and (4) availability, nature and documentation of any in-house project and work.   A well-prepared and documented H-1B cap application should address these (and other) areas of possible scrutiny during this year’s H-1B cap season.

Significantly Higher H-1B Demand Expected This Year

It is impossible to predict how many registrations we will see this year but we expect demand to be close to or even more than prior years. Last year, in FY2024, there were 780,884 registrations.   Previously, in FY2023, there were 483,927 applications.    In FY2022 there were 308,000 applications and  in FY2021 there were 275,000 applications.    

We believe that the demand this year will be similar to or will exceed prior years. One is the gradual increasing trend in H-1B cap filings over the last few years, even with the increased scrutiny by USCIS. Second, as noted above, the mechanics of this year’s H-1B cap lottery registration means that employers do not have to submit a full H-1B petition with fees in order for a case to be considered under the lottery – a fairly simple online registration plus $10 government fee (plus any attorney fees for preparing) is all it takes to submit an H-1B cap lottery entry.

USCIS has specifically indicated that they will only accept one H-1B registration per company per employee. But it is certainly possible for one employee to have good faith job offers and H-1B cap registrations from more than one employer. While one of USCIS’s main goals in changing the system was to make it easier, especially for U.S. master’s degree holders, to obtain an H-1B cap selection, if the new system effectively created a spike in registrations and, as a result, lower lottery selection chances, the outcome would be opposite to the initial intent.      

We caution H-1B petitioners and candidates to keep in mind that their chance of selection this year is likely to be lower than prior years. As always, for our clients, we provide analysis of alternatives in the event an H-1B cap petition is not successful.

Over the next several months our office will monitor very carefully the H-1B application demand and we will be providing timely updates on the H-1B cap filing season, including on cap demand and expectations.   Please check back with us often or subscribe to our Weekly Newsletter to receive news and updates related to this H-1B filing season.

Attorney Assistance with H-1B Cap Preparation and Submission

Our office will be happy to provide consultations or assistance with preparing and submitting petitions H-1B cap petitions.

We offer flat fees to handle the entire application and you can contact us or request a flat fee quote. Alternatively, if you would like to schedule a consultation with an attorney to discuss a specific case (but perhaps without engaging us to help with the actual filing ), we offer phone consultations.

Conclusion

With the H-1B cap filing process changed substantially over the past couple of seasons and with very high demand expected, we urge H-1B employers to start the preparation process early and to conduct a thorough case analysis before submitting the H-1B cap lottery entry in early March.

If you wish to start a new H-1B work visa petition under this year’s quota, or if our office can be of any help, please contact us as soon as possible or submit our H-1B cap contact form.  Our attorneys and professionals stand ready to review your case, as part of our free initial consultation, and will help you prepare a strong H-1B application. Also, we invite you to subscribe to our free weekly newsletter to obtain further news and developments on this topic.