Staggering Number of H-1B Cap Registrations and USCIS Efforts to Combat Fraud

USCIS has finally released details of the numbers of H-1B cap registrations for the upcoming fiscal year and the numbers are well above expectations in a number of ways.   USCIS reported that out of a total of 780,888 registrations, after removing duplicates and failed payments, there are 758,994 eligible registrations, an increase of about 63% compared to the prior year.   USCIS has also released detailed statistics about the breakdown of registrants with single or multiple employers and USCIS is expressing concerns that the major increase in registrations by multiple employers for the same candidate may be a suggestion of fraud.

H-1B Cap Numbers and Breakdown of Registrations by Single of Multiple Employers for the Same Candidate

For the first time this year USCIS is releasing a breakdown in the number of registrations for the same candidate by a single or by multiple employers.

USCIS 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.

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.

USCIS To Take More Proactive Measures to Combat Fraud in the H-1B Cap Registration Process

Notwithstanding the reminders and attestations required by employers,  the spike in registrations and especially the sharp increase in registrations for the same candidate by multiple employers (from about 30% last year to about 53% this year), has caused USCIS to take more proactive steps to combat fraud.   At this time we do not know what steps, if any, USCIS will take against candidates with multiple registrations or against employers who submit such registrations.    We expect that they will try to go after some of the top multiple-employer registrants but, absent indications of fraud or collusion, it is unlikely that USCIS will go after each employer who submits registrations for a candidate who may have another registration.

Our office has been advising many employers and candidates on how to navigate the uncertainty created by this USCIS announcement.   We are seeing employers and candidates consider pulling out and not submitting H-1B cap petitions after selection and our office has been advising clients on the best strategies on handling the situation.

Generally, we recommend employers and candidates pursue and submit any legitimate and good faith job offer H-1B cap registrations.   There is nothing wrong for a candidate to have multiple job offers by multiple (unrelated and non-coordinated) employers.    At the same time, from the employer’s perspective,  as long as the employer has not coordinated or otherwise tried to circumvent or increase the chances for a prospective candidate,  it would make sense for the employer to submit an H-1B cap petition even if the candidate may have had other job offers by other (non-related or coordinated) employers.

In cases where there are (possible) questions or issues of multiple registrations, we recommend preparing and retaining good documentation to establish that each job offer (and H-1B cap registration) was made in good faith.    If possible, it is a good idea to also document that multiple job offers were made by separate and unrelated employers.

Please contact us if our office can provide assistance in evaluating these options.

H-1B Cap Filings Likely to be Lower; Chances for Secondary H-1B Cap Lottery

As a result of USCIS’s announcement, it is likely that the number of H-1B filings will be lower this year and it is possible that out of the 110,791 registrations, there will not be sufficient number to fill up the 85,000 total H-1B cap quota for the year.   This means that there will likely be a secondary lottery.

However,  even if there is a secondary lottery, we caution that the chance of selection will be very small.  USCIS will allocate any number of unused visas among all of the 650,000 registrants.   We anticipate that the chance for selection under a possible second lottery to be in the low single digits.

Conclusion

Our office is ready to assist with the preparation and throughout the adjudication process, including in evaluating and mitigating the risks of multiple H-1B cap registrations — please contact us as soon as possible.  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.