However, the rulemaking process takes time, and according to the most recent regulatory agenda, the proposed H-1B rule is not expected until the end of the year. USCIS has also proposed increasing the registration fee from $10 to $215 as part of a broader proposal to dramatically increase fees to cover costs. The final increase could be smaller, but even a $215 fee might have a limited impact on the number of registrations companies submit.
In addition, uncertain timetables and the possibility of litigation for both the not-yet- proposed H-1B modernization rule and the fee rule — which has been proposed but not targeted to be finalized until March 2024 — make it impossible to know whether changes could be implemented before next March’s registration window.
The future of the H-1B registration process is of paramount concern. In the near term, USCIS should continue to provide as much transparency as possible to the public, including regarding the number of petitions it receives and its actions to address potential misuse of the system. Additional information about whether the agency plans to conduct a second registration lottery would enable employers to plan and set expectations with their employees.
While there is no silver bullet, some possibilities the agency could consider include selecting registrations by unique beneficiary, such that eligibility for H-1B sponsorship does not hinge on the number of registrations filed on a beneficiary’s behalf, and transitioning to online filing in conjunction with a “Known Employer” program.
The agency should continue to seek input from stakeholders and approach this issue thoughtfully but with urgency.
Employers can ill afford another lottery like this year’s, where just 14.6% of registrations were selected. In the absence of congressional action to raise the H-1B cap, which has remained at 85,000 since 2006, more transparency and a well-crafted regulation could help ensure this in-demand resource remains viable.
For all its limitations, the H-1B program remains the primary pathway for high-skilled foreign nationals to remain in or come to the U.S. to pursue a career. The program is crucial to helping large and small employers hire and retain needed talent in industries ranging from tech to health care to engineering. The importance of getting the registration system right cannot be understated.