Proposed H-1B Rules May Bring Positive Changes to the Upcoming H-1B Lottery for FY2025  

October 25, 2023
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“GAP-Cap” Extension Through April 1 of the Relevant Fiscal Year Many students graduating in the Spring are faced with a situation where their OPT work authorizations will expire between April and June in the years following graduation. The students are left with a gap in their work authorization until October 1st or a later date when their H-1B status starts.  DHS also proposes to provide flexibilities, such as automatically extending the duration of F-1 status and continuing their OPT authorizations beyond September 30 until April 1 of the relevant fiscal year to avoid disruptions in lawful status and employment authorization for F-1 students changing their status to H-1B. This is a welcoming change as the current GAP-Cap coverage rules are out of step with the way that USCIS handles the cap-subject H-1B selection process. The GAP-Cap extension would only apply to beneficiaries with pending H-1B petitions. Unique Beneficiary Registration System DHS has reported that their investigation revealed an increase in the number of registrations where five or more registrations were submitted for one beneficiary as well as an overall increase in the total number of registrations submitted for a unique individual. As the number of multiple registrations increases, the individual’s chance for selection is greatly decreased jeopardizing the functionality and fairness of the system.    DHS acknowledged that some multiple registrations may result from certain individuals having multiple job offers and not employers working together to game the system. DHS expressed concerns, however, that many multiple registrations may result from beneficiaries and registrants working together to artificially increase their chances of selection and that those entries do not represent legitimate job offers.  The proposed Unique Beneficiary Selection System would ensure that each beneficiary is entered in the lottery only once regardless of how many registrations were filed on his or her behalf. This would give each entrant an equal chance of being selected. Once selected, the beneficiary would decide which registration they would like to proceed with. The Unique Beneficiary Selection System would give the beneficiaries much more leverage and bargaining power in the labor market.  The proper identification of each beneficiary would be at the core of this newly proposed selection system. DHS revealed that they would require a valid passport for each individual. Applicants without valid passports would unfortunately be barred from entering the lottery. Individuals holding multiple passports would only be allowed to register with one passport or risk having their petition denied or revoked.    DHS also proposed to extend the existing prohibition on related entities filing multiple petitions absent legitimate business needs reflected in the current registration attestations. Furthermore, DHS seeks to codify their ability to deny and revoke H-1B petitions based on multiple registrations which would make it more difficult to defend allegations based on those grounds.    DHS remains optimistic that the proposed changes can be put in place before the upcoming CAP season; however, the rollout period could be potentially delayed.  Start Date Flexibility Additionally, DHS is proposing to clarify 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 creating more consistency and uniformity with the current USCIS policy.   The proposed rules would align the current USCIS Cap subject practices with the language pertinent to the start date referenced on the H-1B Cap subject petitions. DHS proposed to remove the language related to limitations on the requested start date. This change would provide employers with clarity that they can request a start date of October 1 or later as long as they do not go beyond 6 months from the filing date.  This change is designed to clarify the ambiguity of the current language and eliminate the potential for confusion. In FY 2021, for example, USCIS rejected and administratively closed many petitions which did not list a back-dated start date of October 1, 2020. The agency subsequently corrected their position and allowed employers to resubmit their petitions.    Edyta Salata, Esq.
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