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Improving the H-1B Registration Selection Process and Program Integrity rule (2024)

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The Improving the H-1B Registration Selection Process and Program Integrity rule is a significant rule issued by the U.S. Department of Homeland Security (DHS) effective March 4, 2024, that amends regulations regarding the H-1B registration selection process pursuant to the Immigration and Nationality Act of 1952.[1]

HIGHLIGHTS
  • Name: Improving the H-1B Registration Selection Process and Program Integrity
  • Agency: U.S. Citizenship and Immigration Services, Department of Homeland Security
  • Action: Final rule
  • Type of significant rule: Other significant rule

    • Timeline

    The following timeline details key rulemaking activity:

    Background

    The Immigration and Nationality Act of 1952 (INA) authorizes the secretary of the U.S. Department of Homeland Security (DHS) to establish regulations to enforce immigration and nationality laws. Under the authority of the INA, DHS issued amended regulations in an effort to improve the H-1B registration selection process. DHS established regulations to implement "a beneficiary centric selection process for H–1B registrations, start date flexibility for certain H–1B cap-subject petitions, and integrity measures related to H–1B registration," according to the rule.

    The DHS rule aimed to address an increase the department had seen in beneficiaries with multiple registrations submitted. The amended regulations aimed to ensure "that the annual numerical allocations are going to petitioners that truly intend to employ an H–1B worker, rather than prospective petitioners using the registration system as a placeholder for the possibility that they may want to employ an H–1B worker or as a way to game the selection process," according to the rule.[1]

    Summary of the rule

    The following is a summary of the rule from the rule's entry in the Federal Register:[1]

    “ The U.S. Department of Homeland Security (DHS) is amending its regulations to implement the proposed 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.[3] ”

    Summary of provisions

    The following is a summary of the provisions from the rule's entry in the Federal Register:[1]

    “

    The purpose of this rulemaking is to improve the H–1B registration selection process. Through this rule, DHS is implementing a beneficiary centric selection process for H–1B registrations. 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. See new 8 CFR 214.2(h)(8)(iii)(A)(1) and (4). DHS anticipates that changing to a beneficiary centric selection process for H–1B registrations will reduce the potential for gaming the process to increase chances for selection and help ensure that each beneficiary has the same chance of being selected, regardless of how many registrations are submitted on their behalf.

    DHS will also provide start date flexibility for certain H–1B cap-subject petitions. DHS is clarifying 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, consistent with current USCIS policy, by removing the current regulatory text at 8 CFR 214.2(h)(8)(iii)(A)(4).

    Additionally, DHS is implementing integrity measures related to the H–1B registration process, including requiring registrations to include the beneficiary's valid passport information or valid travel document information, and prohibiting a beneficiary from being registered under more than one passport or travel document. See new 8 CFR 214.2(h)(8)(iii)(A)(4). DHS is also codifying 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. See new 8 CFR 214.2(h)(8)(iii)(A) and (D). In addition, DHS is also further codifying 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. See new 8 CFR 214.2(h)(10)(ii)–(iii). Finally, DHS is codifying 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. See new 8 CFR 214.2(h)(11)(iii)(A).[3]

    		”

    Significant impact

    See also: Significant regulatory action

    Executive Order 12866, issued by President Bill Clinton (D) in 1993, directed the Office of Management and Budget (OMB) to determine which agency rules qualify as significant rules and thus are subject to OMB review.

    Significant rules have had or might have a large impact on the economy, environment, public health, or state or local governments. These actions may also conflict with other rules or presidential priorities. Executive Order 12866 further defined an economically significant rule as a significant rule with an associated economic impact of $100 million or more. Executive Order 14094, issued by President Joe Biden (D) on April 6, 2023, made changes to Executive Order 12866, including referring to economically significant rules as section 3(f)(1) significant rules and raising the monetary threshold for economic significance to $200 million or more.[1]


    The text of the rule states that OMB deemed this rule significant, but not section 3(f)(1) significant:

    “ The Office of Management and Budget (OMB) has designated this final rule a 'significant regulatory action' as defined under section 3(f) of E.O. 12866, as amended by Executive Order 14094, but it is not significant under section 3(f)(1) because its annual effects on the economy do not exceed $200 million in any year of the analysis. Accordingly, OMB has reviewed this final rule.[3] ”

    Text of the rule

    The full text of the rule is available below:[1]

    See also

    External links

    Footnotes

    1. ↑ 1.0 1.1 1.2 1.3 1.4 1.5 1.6 1.7 Federal Register, "Improving the H-1B Registration Selection Process and Program Integrity," February 2, 2024
    2. ↑ 2.0 2.1 Federal Register, "Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers," October 23, 2023
    3. ↑ 3.0 3.1 3.2 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
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