There is no doubt that the new registration process implemented by USCIS failed miserably due to significant flaws which opened doors for abuse and misuse of the immigration system by unscrupulous employers.
With a minimum registration fee of $10 per applicant and a registration form which requires minimal information of the applicant, the process was supposed to fail even before its implementation.
The employers exploited the inadequacy of the registration process by filing the same applicants through their related companies and through their acquaintances companies to increase the chances of selection of their candidates. At the same time the candidates looked for multiple employers to register for them to increase their chances of selection in the lottery.
The race to get more candidates into the lottery system by the employers and the candidate’s desperation to get into the lottery system by filing through multiple companies led to the collapse of the registration system as the number of registrations exploded to more than 780,000 for the fiscal year 2024.
Rather than acknowledging the abuse by both employers and candidates, USCIS initially denied any flaws in the system, even when confronted with a lawsuit filed by 300 applicants in 2020. The agency rejected all allegations, refusing to accept responsibility.
In 2021, USCIS attempted to address the issue with an attestation requiring employers to declare under penalty of perjury that they were not colluding with others to increase their candidates' chances of selection. However, this measure failed to deter employers and candidates from continuing to file multiple registrations.
Starting in October 2022, USCIS began issuing Notices of Intent to Deny and Notices of Intent to Revoke for multiple registrations, alleging fraud, misrepresentation, and violation of the attestation's terms. Despite these actions, the abuse of the H-1B registration process persisted, with the number of registrations nearly doubling in 2023.
Finally, in May 2023, USCIS announced its intention to refer abusers for criminal prosecution.
But undoubtedly, USCIS will face significant challenges and will fail miserably in initiating criminal prosecution or effectively preventing multiple registrations under the existing rules and regulations.
The initial regulation on H-1B cap registration was properly implemented through a rule making process and the regulation permitted multiple registration through different companies. The regulation reads, “USCIS will accept more than one registration for the same beneficiary so long as each registration relates to a different employer”. If the USCIS wanted to restrict multiple registrations, they should have followed the proper rule making process. Instead, the agency came up with a new attestation under penalty of perjury that the employers cannot collude with one another to increase the chances of selection in the lottery. The penalty of perjury is punishable with a fine and 5 years of imprisonment. But the USCIS will fail in its attempt to bring charges against these employers under penalty of perjury. According to U.S Code Title 28, for the agency to require an attestation under penalty of perjury, the subject matter that is being attested must be to establish a matter that is required under any law of the U.S., or any rule, regulation, order, or requirement made pursuant to law. But there is no regulation that prohibits multiple registration and on the contrary the original regulation allows multiple registration by different employers. In the absence of any law or regulation or even a memorandum, the USCISs implementation of attestation is flawed. Any US attorney would hesitate to take this matter up for criminal prosecution.
Prohibiting multiple registration requires rule making. The existing regulations do support multiple registrations. The Matter of S-Inc, which was adopted by the USCIS and the 8 CFR 214.2(H)(2)(1)(G) clearly states that related companies can file multiple H-1Bs for the same beneficiary if there is a legitimate business need. If the regulations and the USCIS policies permit multiple H-1B filing, with the prohibition on multiple registration, how would related employers file multiple registrations if there is a legitimate business need. So, the current regulations and the USCIS new attestation requirements contradict significantly.
The USCIS alleges fraud and misrepresentation in the NOIDs and NOIRs. However, the regulation that they are quoting alleging fraud and misrepresentation does not apply to the employers. The regulation says an alien may not commit fraud or misrepresentation to obtain an immigration benefit. USCISs allegation is that the employers are committing fraud. USCIS is quoting the wrong statute. The fraud and misrepresentation allegation won’t survive the test of law.
The registration system for H-1B visas is fundamentally flawed. According to the regulations, if multiple H-1B petitions are filed for the same beneficiary, only one visa number should be allotted. However, when the same beneficiary is selected through multiple companies, multiple visa numbers are allocated to that individual. This leads to a wastage of visa numbers, as beneficiaries who are selected through multiple companies end up filing their H-1B petitions through a single company, resulting in the loss of the remaining visa numbers. Consequently, very few people are actually selected in the lottery despite the high number of registrations.
The lack of transparency from USCIS further exacerbates the problem. It is unclear whether the unused visa numbers are allocated to the next fiscal year or if they simply go to waste. This ambiguity adds to the inefficiency and unfairness of the current system.
The USCISs promulgation of restriction of multiple registrations shows the lack of personals in the agency with legal knowledge or willful ignorance of the laws which they have always taken in for granted. But the Executive Orders and unlawful memos and rejections have left the agency vulnerable as lawsuits flooded courts and employers and beneficiaries are no longer scared to take the agency to the court.
The current flawed method of implementation of restrictions on multiple registrations by USCIS indicates a potential lack of personnel within the agency who possess sufficient legal knowledge or may demonstrate willful ignorance of the laws that they have previously taken for granted. The issuance of Executive Orders, unlawful memos, and denials during Trump era has left the agency vulnerable to legal challenges as an increasing number of lawsuits flooded the courts. Employers and beneficiaries are no longer hesitant to take legal action against the agency. The current issuance of Notice of Intent to Deny (NOID) and subsequent denials by USCIS is expected to put a strain on the courts, as it is likely to result in numerous lawsuits. The increased number of NOIDs and denials could lead to a significant caseload for the courts, as individuals and employers seek legal remedies to challenge these decisions.
It is crucial for the agency, USCIS, to undertake a comprehensive revamp of the existing regulations governing the cap registration process in order to effectively address the abuses within the system. Furthermore, USCIS must ensure strict adherence to the rules and regulations in their efforts to prevent multiple registrations. Upholding the integrity of the immigration system is a shared responsibility among employers, employees, lawyers, and USCIS. By collectively upholding the principles and regulations that govern the system, we can maintain a fair and transparent immigration process for the benefit of all individuals involved.
Thomas V. Allen