[Federal Register Volume 89, Number 23 (Friday, February 2, 2024)]
[Rules and Regulations]
[Pages 7456-7494]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-01770]



[[Page 7455]]

Vol. 89

Friday,

No. 23

February 2, 2024

Part II





 Department of Homeland Security





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8 CFR Part 214





Improving the H-1B Registration Selection Process and Program 
Integrity; Final Rule

  Federal Register / Vol. 89 , No. 23 / Friday, February 2, 2024 / 
Rules and Regulations  

[[Page 7456]]


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DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 214

[CIS No. 2766-24; DHS Docket No. USCIS-2023-0005]
RIN 1615-AC70


Improving the H-1B Registration Selection Process and Program 
Integrity

AGENCY: U.S. Citizenship and Immigration Services, DHS.

ACTION: Final rulemaking.

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SUMMARY: 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.

DATES: This final rule is effective March 4, 2024.

FOR FURTHER INFORMATION CONTACT: Charles L. Nimick, Chief, Business and 
Foreign Workers Division, Office of Policy and Strategy, U.S. 
Citizenship and Immigration Services, U.S. Department of Homeland 
Security, 5900 Capital Gateway Drive, Camp Springs, MD 20746; telephone 
(240) 721-3000.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary
    A. Purpose and Summary of the Regulatory Action
    B. Summary of Costs and Benefits
    C. Summary of Changes From the Notice of Proposed Rulemaking
II. Background
    A. Legal Authority
    B. Background on H-1B Registration
    C. The Need for Regulatory Action
    D. Final Rule and Implementation
III. Public Comments on the Proposed Rule
    A. Summary of Public Comments
    B. Statutory and Legal Issues Related to Registration and 
Background
    1. DHS/USCIS Legal Authority Related to Registration
    2. Background and Data on the Current Registration System
    C. Beneficiary Centric Selection
    1. General Support
    2. General Opposition
    3. Identifying Information and Passport Requirement
    4. Implementation and Effective Date
    5. Other Comments on the Beneficiary Centric Selection Process
    D. Start Date Flexibility for Certain H-1B Cap-Subject Petitions
    E. Registration Related Integrity Measures
    1. Bar on Multiple Registrations Submitted by Related Entities
    2. Registrations With False Information or That Are Otherwise 
Invalid
    3. Other Comments and Alternatives to Anti-Fraud Measures 
Related to Registration
    F. Other Comments Related to the Proposed Registration System
    1. Electronic Registration v. Paper-Based Filing
    2. Comments on Fees Related to Registration
    3. Other Comments and Alternatives Related to Registration
IV. Severability
V. Statutory and Regulatory Requirements
    A. Executive Order 12866 (Regulatory Planning and Review) and 
Executive Order 13563 (Improving Regulation and Regulatory Review)
    B. Regulatory Flexibility Act (RFA)
    C. Unfunded Mandates Reform Act of 1995 (UMRA)
    D. Congressional Review Act
    E. Executive Order 13132 (Federalism)
    F. Executive Order 12988 (Civil Justice Reform)
    G. Executive Order 13175 (Consultation and Coordination With 
Indian Tribal Governments)
    H. National Environmental Policy Act (NEPA)
    I. Paperwork Reduction Act (PRA)

Table of Abbreviations

CFR--Code of Federal Regulations
CPI-U--Consumer Price Index for All Urban Consumers
DHS--U.S. Department of Homeland Security
DOL--U.S. Department of Labor
FR--Federal Register
FY--Fiscal Year
HR--Human Resources
HSA--Homeland Security Act of 2002
IMMACT 90--Immigration Act of 1990
INA--Immigration and Nationality Act
LCA--Labor Condition Application
NEPA--National Environmental Policy Act
NPRM--Notice of Proposed Rulemaking
OMB--Office of Management and Budget
PRA--Paperwork Reduction Act
PRD--Policy Research Division
Pub. L.--Public Law
RFA--Regulatory Flexibility Act of 1980
RIA--Regulatory Impact Analysis
Stat.--U.S. Statutes at Large
TLC--Temporary Labor Certification
UMRA--Unfunded Mandates Reform Act
U.S.C.--United States Code
USCIS--U.S. Citizenship and Immigration Services

I. Executive Summary

    DHS is amending its regulations relating to the H-1B registration 
selection process. This final rule implements 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. These provisions are being codified at new 8 CFR 
214.2(h)(8)(iii)(A), (h)(8)(iii)(D), (h)(8)(iii)(E), (h)(10)(ii), 
(h)(10)(iii), and (h)(11)(iii)(A). At this time, DHS is not finalizing 
other provisions of the ``Modernizing H-1B Requirements, Providing 
Flexibility in the F-1 Program, and Program Improvements Affecting 
Other Nonimmigrant Workers,'' Notice of Proposed Rulemaking (NPRM), 
published in the Federal Register on October 23, 2023 (October 23 
NPRM).

A. Purpose and Summary of the Regulatory Action

    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

[[Page 7457]]

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).

B. Summary of Costs and Benefits

    The purpose of this rulemaking is to improve the H-1B registration 
selection process. For the 10-year period of analysis of the final 
rule, DHS estimates the annualized net cost savings of this rulemaking 
will be $2,199,374 annualized at 3 percent and 7 percent. Table 1 
provides a more detailed summary of the final rule provisions and their 
impacts.

C. Summary of Changes From the Notice of Proposed Rulemaking

    Following careful consideration of public comments received, this 
final rule adopts some of the provisions proposed in the October 23 
NPRM, with some changes as described below.
Passport or Travel Document Requirement
    DHS will make a modification to the proposed passport requirement 
to specify that registrations must include the beneficiary's valid 
passport or valid travel document. See new 8 CFR 
214.2(h)(8)(iii)(A)(4)(ii) and (D)(1). As proposed in the NPRM, 8 CFR 
214.2(h)(8)(iii)(A)(4)(ii) would have required the registration to 
include the beneficiary's valid passport information and would not have 
provided an exception to the passport requirement. However, after 
considering public comments expressing concern for stateless 
individuals, refugees, and others who are unable to obtain valid 
passports, DHS has decided to modify new 8 CFR 
214.2(h)(8)(iii)(A)(4)(ii) so that the registration must include the 
beneficiary's valid passport information or valid travel document 
information. Requiring the beneficiary's valid passport information or 
valid travel document information at the registration stage would align 
with the current Form I-129 which asks for the beneficiary's ``passport 
or travel document.'' This modification to allow for a valid travel 
document is intended to narrowly accommodate stateless individuals, 
refugees, and others who are unable to obtain valid passports, and is 
directly in response to public comments expressing concerns for these 
populations. The travel document must be the travel document that the 
beneficiary, if or when abroad, intends to use to enter the United 
States if issued an H-1B visa. See new 8 CFR 
214.2(h)(8)(iii)(A)(4)(ii). Therefore, the travel document must be 
valid for the entry of the bearer into the United States. An example of 
a valid travel document includes one of the travel documents listed in 
the Department of State's reciprocity schedule.\1\ DHS is also 
modifying this provision by adding ``or when'' to the phrase ``if 
abroad.'' This modification is intended to clarify that the passport or 
travel document must be the same passport or travel document that the 
beneficiary intends to use to enter the United States, whether the 
beneficiary is abroad at time of registration or in the United States 
at the time of registration and will subsequently depart to obtain an 
H-1B visa and return to the United States to request admission as an H-
1B nonimmigrant.
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    \1\ The Department of State website shows visa reciprocity by 
country. To view the Reciprocity Page for a country of nationality, 
select the country/area of authority from the list of countries on 
the left side menu. On the country's Reciprocity Page, select 
``Passports & Other Travel Documents.'' Department of State, U.S. 
Visa: Reciprocity and Civil Documents by Country, https://travel.state.gov/content/travel/en/us-visas/Visa-Reciprocity-and-Civil-Documents-by-Country.html.
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    Under new 8 CFR 214.2(h)(8)(iii)(A)(4)(ii), each beneficiary may 
only be registered under one passport or travel document. Under new 8 
CFR 214.2(h)(8)(iii)(A)(2), if USCIS determines that registrations are 
submitted by either the same or different prospective petitioners for 
the same beneficiary, but using different identifying information, 
USCIS may find those registrations invalid and deny or revoke the 
approval of any H-1B petition filed based on those registrations. 
Additionally, any H-1B petition filed on behalf of a beneficiary must 
contain and be supported by the same identifying information provided 
in the selected registration, and petitioners must submit evidence of 
the passport or travel document used at the time of registration to 
identify the beneficiary under new 8 CFR 214.2(h)(8)(iii)(D)(1). Such 
evidence may include a copy of the passport or travel document, 
consistent with current practice. In its discretion, USCIS may find 
that a change in identifying information in some circumstances would be 
permissible. Such circumstances could include, but are not limited to, 
a legal name change due to marriage, change in gender identity, or a 
change in passport number or expiration date due to renewal or 
replacement of a stolen passport, in between the time of registration 
and filing the petition. USCIS may deny or revoke an H-1B petition that 
does not meet these requirements. See new 8 CFR 214.2(h)(8)(iii)(D)(1).
Multiple Registrations by Related Entities
    DHS will not finalize the proposed change at 8 CFR 
214.2(h)(2)(i)(G) to prohibit related entities from submitting multiple 
registrations for the same individual at this time. DHS will address 
and may finalize this proposed provision in a subsequent final rule. 
However, the submission of multiple registrations for the same 
individual by related entities should not increase the chances of 
selection given the finalization of the proposal to have USCIS select 
registrations by unique beneficiary. See new 8 CFR 
214.2(h)(8)(iii)(A)(1) and (4).
Severability
    DHS is adding new regulatory text on severability at 8 CFR 
214.2(h)(8)(v)(B) and redesignating the severability clause at 
paragraph (h)(8)(v) as new paragraph (h)(8)(v)(A). While severability 
was discussed in the NPRM, it was only discussed in the preamble and 
there was no proposed regulatory text.
Other Changes From the NPRM
    DHS is also amending the proposed regulatory text at 8 CFR 
214.2(h)(8)(iii)(A)(4) to state, ``A petitioner may file an H-1B cap-
subject petition on behalf of a registered beneficiary only after their 
properly submitted registration for that beneficiary has been selected 
for that fiscal year.'' The only change from the NPRM is changing ``a'' 
to ``their'' before ``properly submitted registration.'' DHS is making 
this change to eliminate any confusion that the petitioner listed on 
the H-1B petition must be the same as, or a successor in interest to, 
the prospective petitioner listed on the registration that was 
selected.

[[Page 7458]]

II. Background

A. Legal Authority

    The Secretary of Homeland Security's authority for these regulatory 
amendments is found in various sections of the Immigration and 
Nationality Act (INA or the Act), 8 U.S.C. 1101 et seq., and the 
Homeland Security Act of 2002 (HSA), Pub. L. 107-296, 116 Stat. 2135, 6 
U.S.C. 101 et seq. General authority for issuing this rule is found in 
section 103(a) of the INA, 8 U.S.C. 1103(a), which authorizes the 
Secretary to administer and enforce the immigration and nationality 
laws and establish such regulations as the Secretary deems necessary 
for carrying out such authority, as well as section 102 of the HSA, 6 
U.S.C. 112, which vests all of the functions of DHS in the Secretary 
and authorizes the Secretary to issue regulations.\2\ Further authority 
for these regulatory amendments is found in:
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    \2\ Although several provisions of the INA discussed in this 
NPRM refer exclusively to the ``Attorney General,'' such provisions 
are now to be read as referring to the Secretary of Homeland 
Security by operation of the HSA. See 6 U.S.C. 202(3), 251, 271(b), 
542 note, 557; 8 U.S.C. 1103(a)(1), (g), 1551 note; Nielsen v. 
Preap, 139 S. Ct. 954, 959 n.2 (2019).
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     Section 101(a)(15) of the INA, 8 U.S.C. 1101(a)(15), which 
establishes classifications for noncitizens who are coming temporarily 
to the United States as nonimmigrants, including the H-1B 
classification, see INA sec. 101(a)(15)(H)(i)(b), 8 U.S.C. 
1101(a)(15)(H)(i)(b);
     Section 214(a)(1) of the INA, 8 U.S.C. 1184(a)(1), which 
authorizes the Secretary to prescribe, by regulation, the time and 
conditions of the admission of nonimmigrants;
     Section 214(c) of the INA, 8 U.S.C. 1184(c), which, inter 
alia, authorizes the Secretary to prescribe how an importing employer 
may petition for nonimmigrant workers, including certain nonimmigrants 
described at sections 101(a)(15)(H), (L), (O), and (P), 8 U.S.C. 
1101(a)(15)(H), (L), (O), and (P); the information that an importing 
employer must provide in the petition; and certain fees that are 
required for certain nonimmigrant petitions;
     Section 214(g) of the INA, 8 U.S.C. 1184(g), which, inter 
alia, prescribes the H-1B numerical limitations, various exceptions to 
those limitations, and the period of authorized admission for H-1B 
nonimmigrants;
     Section 235(d)(3) of the INA, 8 U.S.C. 1225(d)(3), which 
authorizes ``any immigration officer'' ``to administer oaths and to 
take and consider evidence of or from any person touching the privilege 
of any alien or person he believes or suspects to be an alien to enter, 
reenter, transit through, or reside in the United States or concerning 
any matter which is material and relevant to the enforcement of [the 
INA] and the administration of [DHS]'';
     Section 287(b) of the INA, 8 U.S.C. 1357(b), which 
authorizes the taking and consideration of evidence ``concerning any 
matter which is material or relevant to the enforcement of the [INA] 
and the administration of [DHS]'';
     Section 402 of the HSA, 6 U.S.C. 202, which charges the 
Secretary with ``[e]stablishing and administering rules . . . governing 
the granting of visas or other forms of permission . . . to enter the 
United States'' and ``[e]stablishing national immigration enforcement 
policies and priorities''; see also HSA sec. 428, 6 U.S.C. 236; and
     Section 451(a)(3) and (b) of the HSA, 6 U.S.C. 271(a)(3) 
and (b), transferring to USCIS the authority to adjudicate petitions 
for nonimmigrant status, establish policies for performing that 
function, and set national immigration services policies and 
priorities.

B. Background on H-1B Registration

    The H-1B nonimmigrant visa program allows U.S. employers to 
temporarily employ foreign workers in specialty occupations, defined by 
statute as occupations that require the theoretical and practical 
application of a body of highly specialized knowledge and a bachelor's 
or higher degree in the specific specialty, or its equivalent. See INA 
secs. 101(a)(15)(H)(i)(b) and 214(i), 8 U.S.C 1101(a)(15)(H)(i)(b) and 
1184(i). Through the Immigration Act of 1990 (Pub. L. 101-649), 
Congress set the current annual cap for the H-1B visa category at 
65,000,\3\ which limited the number of beneficiaries who may be issued 
an initial H-1B visa or otherwise provided initial H-1B status each 
fiscal year.\4\ Congress provided an exemption from the numerical 
limits in INA sec. 214(g)(1)(A), 8 U.S.C. 1184(g)(1)(A), for 20,000 
initial H-1B visas, or grants of initial H-1B status, each fiscal year 
for foreign nationals who have earned a master's or higher degree from 
a U.S. institution of higher education (``advanced degree 
exemption'').\5\
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    \3\ Up to 6,800 visas are set aside from the 65,000 each fiscal 
year for the H-1B1 visa program under terms of the legislation 
implementing the U.S.-Chile and U.S.-Singapore free trade 
agreements. See INA secs. 101(a)(15)(H)(i)(b1), 214(g)(8), 8 U.S.C. 
1101(a)(15)(H)(i)(b1), 1184(g)(8).
    \4\ The 65,000 annual H-1B numerical limitation was increased 
for FYs 1999-2003. See INA sec. 214(g)(1)(A), 8 U.S.C. 
1184(g)(1)(A), as amended by section 411 of the ACWIA, Public Law 
105-277, div. C, tit. IV, 112 Stat. 2681, and the American 
Competitiveness in the Twenty-first Century Act of 2000 (AC21), 
Public Law 106-313, 114 Stat. 1251, as amended by the 21st Century 
Department of Justice Appropriations Authorization Act, Public Law 
107-273, 116 Stat. 1758 (2002). Subsequent to IMMACT 90, Congress 
also created several exemptions from the 65,000 numerical 
limitation. See INA sec. 214(g)(5), 8 U.S.C. 1184(g)(5).
    \5\ See INA sec. 214(g)(5)(C), 8 U.S.C. 1184(g)(5)(C). This rule 
also may refer to the 20,000 exemptions under section 214(g)(5)(C) 
from the H-1B regular cap as the ``advanced degree exemption 
allocation,'' or ``advanced degree exemption numerical limitation.''
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    To manage the annual cap, USCIS used a random selection process in 
years of high demand to determine which petitions were selected toward 
the projected number of petitions needed to reach the annual H-1B 
numerical allocations. In order to better manage the selection process, 
DHS created a registration requirement for H-1B cap-subject petitions, 
which was first implemented in 2020 for the FY 2021 cap season. Through 
issuance of a final rule in 2019, ``Registration Requirement for 
Petitioners Seeking To File H-1B Petitions on Behalf of Cap-Subject 
Aliens,'' DHS developed a new way to administer the H-1B cap selection 
process to streamline processing and provide overall cost savings to 
employers seeking to file H-1B cap-subject petitions. See 84 FR 888 
(Jan. 31, 2019). Under this process, prospective petitioners (also 
known as registrants) that seek to employ H-1B cap-subject workers must 
complete a registration process that requires only basic information 
about the prospective petitioner and each requested worker. The H-1B 
selection process is then run on properly submitted electronic 
registrations. Only those with valid selected registrations are 
eligible to file H-1B cap-subject petitions. 8 CFR 
214.2(h)(8)(iii)(A)(1).

C. The Need for Regulatory Action

    DHS has seen an increase in the number of beneficiaries with 
multiple registrations submitted on their behalf, as well as an 
increase in the number and percentage of registrations submitted for 
beneficiaries with multiple registrations. Under current regulations, 
there is no limit on the number of registrations that may be submitted 
on behalf of one unique individual by different registrants. DHS has a 
strong interest in ensuring 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. See 88 FR

[[Page 7459]]

72870, 72897 (Oct. 23, 2023). As a result, DHS has determined that 
structurally limiting the ability to game the system through 
beneficiary centric selection will promote the purpose of fair and 
orderly administration of the annual H-1B numerical allocations.

D. Final Rule and Implementation

    On October 23, 2023, DHS published an NPRM, ``Modernizing H-1B 
Requirements, Providing Flexibility in the F-1 Program, and Program 
Improvements Affecting Other Nonimmigrant Workers,'' 88 FR 72870. In 
the October 23 NPRM, DHS stated that it may publish one or more final 
rules to codify the proposed provisions after carefully considering 
public comments, and that it may do so in time for the FY 2025 cap 
season. DHS received 1,315 comments on the NPRM, most of which are 
substantive. Based on recent program experience and careful review of 
public comments expressing the urgent need to reform the registration 
system and support for the proposed beneficiary centric selection 
process, DHS has decided to first finalize changes to the H-1B 
registration selection process and other related changes discussed 
below, to urgently address the potential for abuse of the H-1B 
registration process, including for the upcoming FY2025 cap season. DHS 
continues to consider the suggestions made in public comments received 
on the other proposed changes included in the October 23 NPRM and plans 
to issue a separate final rule to codify or otherwise address those 
proposed changes.

III. Public Comments on the Proposed Rule

A. Summary of Public Comments

    In response to the proposed rule, DHS received 1,315 comments 
during the 60-day public comment period. Of these, 510 comments were 
related to H-1B registration and the related topics that DHS is 
finalizing through this rulemaking. Of these, 25 comments were 
duplicate submissions and approximately 78 were letters submitted 
through mass mailing campaigns. DHS considered all of these comment 
submissions. Commenters included individuals (including U.S. workers), 
companies, law firms, a federation of labor organizations, professional 
organizations, advocacy groups, nonprofit organizations, 
representatives from Congress and local governments, universities, and 
trade and business associations. Most commenters expressed support for 
the rule or offered suggestions for improvement. Of the commenters 
opposing the rule, many commenters expressed opposition to a part of or 
all of the proposed rule. Some just expressed general opposition to the 
rule without suggestions for improvement. For many of the public 
comments, DHS could not ascertain whether the commenter supported or 
opposed the proposed rule.
    DHS has reviewed all of the public comments received in response to 
the proposed rule. In this final rule, DHS is only responding to public 
comments that are related to H-1B registration and the related topics 
that DHS is finalizing through this final rule. DHS's responses are 
grouped by subject area, with a focus on the most common issues and 
suggestions raised by commenters.

B. Statutory and Legal Issues Related to Registration and Background

1. DHS/USCIS Legal Authority Related to Registration
    Comment: While providing feedback on the proposed changes to the H-
1B selection process, a couple of commenters wrote that centering the 
selection process around beneficiaries is a proper exercise of DHS's 
authority under the INA. Citing INA sec. 214(g)(3) and Walker Macy LLC 
v. USCIS, 243 F. Supp. 3d 1156 (D. Or. 2017), the commenters wrote that 
the statutory ambiguity around how to allocate H-1B numbers when the 
Department receives hundreds of thousands of petitions or registrations 
requires DHS to establish ``a reasonable H-1B allocation process for 
such situations.'' Another commenter generally stated that the proposed 
rule is within the legal framework established by Congress.
    Response: DHS agrees with the commenters that it has the statutory 
authority to implement the beneficiary centric registration selection 
process, consistent with its authority under section 102 of the HSA, 6 
U.S.C. 112, and INA secs. 103(a), 214(a) and 214(c), 8 U.S.C. 1103(a), 
1184(a) and 1184(c). These are the same authorities that DHS relied 
upon to create the registration requirement. See 84 FR 888, 894 (Jan. 
31, 2019); see also Liu v. Mayorkas, 588 F.Supp.3d 43, 55 (D.D.C. 2022) 
(finding that the registration requirement does not violate the INA and 
is not ultra vires). DHS also agrees that the beneficiary centric 
registration selection process is a reasonable process for 
administering the H-1B numerical allocations because it better ensures 
an equal chance of selection for each unique beneficiary registered for 
the H-1B cap by a prospective petitioner and systematically reduces the 
potential for prospective petitioners to have a higher chance of 
selection by abusing the system and working with others to submit 
multiple registrations for the same beneficiary.
    Comment: An individual commenter stated that it is unclear whether 
DHS has the statutory authority to implement the proposed beneficiary 
centric selection process. The commenter remarked that the system would 
potentially contradict INA sec. 214(g)(3), 8 U.S.C. 1184(g)(3), which 
states that H-1B visas shall be issued ``in the order in which 
petitions are filed.'' The commenter asserted that the random selection 
system was justifiable because it was used to determine which petitions 
were considered to be filed earlier than others, but that the proposed 
system would not be consistent with this framework. The commenter 
contended that the proposed system seems to contradict INA sec. 
214(g)(3), 8 U.S.C. 1184(g)(3), because the commenter believes that the 
law requires that multiple petitions submitted on behalf of a 
beneficiary would give them multiple chances to have their petition 
considered as one of the 65,000 earliest filed.
    Response: DHS disagrees with the suggestion that it lacks statutory 
authority to implement the beneficiary centric registration selection 
process or that this process would be inconsistent with INA sec. 
214(g)(3), 8 U.S.C. 1184(g)(3), which states that initial H-1B visas or 
grants of status shall be issued in the order in which petitions are 
filed. ``A registration is not a petition.'' Liu v. Mayorkas, 588 
F.Supp.3d 43, 54 (D.D.C. 2022). Registration is merely ``an antecedent 
procedural step to be eligible to file an H-1B cap[-subject] 
petition.'' Id. at 55. Furthermore, INA sec. 214(g)(3), 8 U.S.C. 
1184(g)(3), is silent with regard to how to handle simultaneous 
submissions of H-1B cap-subject petitions. See Walker Macy LLC v. 
USCIS, 243 F. Supp. 3d 1156, 1167 (D. Or. 2017). Contrary to the 
commenter's assertion, the INA does not require USCIS to provide 
multiple chances for selection for beneficiaries of multiple H-1B cap-
subject petitions. Rather, consistent with INA sec. 214(g)(7), 8 U.S.C. 
1184(g)(7) (``Where multiple petitions are approved for 1 alien, that 
alien shall be counted only once''), if multiple employers properly 
file H-1B cap-subject petitions for a beneficiary selected during the 
beneficiary centric registration selection process, and if multiple H-
1B cap-subject petitions are approved for that beneficiary, the 
beneficiary will only be counted once

[[Page 7460]]

toward the numerical allocations.\6\ DHS, therefore, believes that the 
beneficiary centric registration selection process, similar to the 
registration-based selection process, is not inconsistent with INA sec. 
214(g)(3), 8 U.S.C. 1184(g)(3), and is a permissible exercise of DHS's 
authority under section 102 of the HSA, 6 U.S.C. 112, and INA secs. 
103(a), 214(a) and 214(c), 8 U.S.C. 1103(a), 1184(a) and 1184(c).
---------------------------------------------------------------------------

    \6\ See Liu v. Mayorkas, 588 F.Supp.3d 43, 55 (D.D.C. 2022) 
(``Consider also that if an alien could have only one employer file 
a registration on his behalf, that would conflict with Sec.  
1184(g)(7). Such a rule would effectively bar any scenario where an 
alien could have more than one petition approved for him. Section 
1184(g)(7) would become meaningless. That is why the Registration 
Rule allows for multiple registrations. And it adheres to the INA, 
because `one alien, one registration' is not in the statutory 
language.'').
---------------------------------------------------------------------------

    Comment: A comment from multiple members of Congress stated that, 
while it is legal for beneficiaries to have multiple employers submit 
registrations on their behalf, the current registration system is 
``unfair to [beneficiaries] and scrupulous employers, detrimental to 
the H-1B system, and inconsistent with statutory intent, as individuals 
with multiple selections may be counted as multiple cap slots.'' These 
commenters strongly recommended that DHS implement the beneficiary 
centric system in time for the FY 2025 registration period.
    Response: DHS agrees that the beneficiary centric selection 
approach will improve the fairness and integrity of the H-1B 
registration process and reduce the possibility for abuse. However, DHS 
disagrees with the commenters' suggestion that the current registration 
system is inconsistent with the statute or congressional intent.\7\ As 
stated in previous responses above, DHS has the statutory authority to 
implement the beneficiary centric registration selection process, 
consistent with its authority under section 112 of the HSA, 6 U.S.C. 
112, and INA secs. 103(a), 214(a) and 214(c), 8 U.S.C. 1103(a), 1184(a) 
and 1184(c). DHS also agrees that implementing these improvements as 
soon as possible, and in time for the FY 2025 cap season, will be 
advantageous to the regulated public and DHS.
---------------------------------------------------------------------------

    \7\ The U.S. District Court for the District of Columbia found 
that the current registration process is not inconsistent with the 
INA and is therefore not ultra vires. See Liu v. Mayorkas, 588 
F.Supp.3d 43, 55 (D.D.C. 2022) (``The Rule does not allow more than 
65,000 visas (85,000 with the exempt visas included), so it complies 
with sec. 1184(g)(1). The Applicants do not argue that the Rule 
allows USCIS to issue visas in any order other than the order in 
which it receives petitions. Nor could they, because all the 
Registration Rule does is require prospective employers to file a 
registration as a first step in the process. A registration is not a 
petition. The Registration Rule is simply an antecedent procedural 
step to be eligible to file an H-1B cap petition. So the Rule does 
not violate sec. 1184(g)(3). And the Rule does not violate sec. 
1184(g)(7) because it makes no provision for USCIS to count an alien 
more than once against the H-1B cap. . . Because the INA is clear, 
the Court need not move to Chevron step two. And because the 
Registration Rule does not violate the INA, it is not ultra 
vires.'') (citations omitted).
---------------------------------------------------------------------------

2. Background and Data on the Current Registration System
    Comment: While citing research published in Forbes on May 1, 
2023,\8\ a couple of commenters offered general background on selection 
in the H-1B registration process, stating that the chances of selection 
have decreased from FY 2021 to FY 2024. A commenter expressed support 
for the rule, while inaccurately stating that there were ``7.81 million 
registrations received during the 2024 fiscal year.'' Another commenter 
conveyed support for the proposed rule by referencing the unprecedented 
number of registrations received during FY 2024. While referencing the 
increase in registrations for beneficiaries with multiple 
registrations, a joint submission expressed a vision of the H-1B 
registration system in which employers with genuine job opportunities 
are not disadvantaged by those who manipulate the registration process. 
Citing the increase in the number of ``applications'' within the past 3 
years, a commenter stated that this increase was because of businesses 
sponsoring multiple applications for the same person.
---------------------------------------------------------------------------

    \8\ Anderson, Stuart, ``Immigration Service Likely to Change H-
1B Visa Lottery,'' Forbes (May 1, 2023), https://www.forbes.com/sites/stuartanderson/2023/05/01/immigration-service-likely-to-change-h-1b-visa-lottery/?sh=5253047d2868.
---------------------------------------------------------------------------

    Response: In FY 2024, there were many more registrations than in 
previous years. As USCIS stated on its ``H-1B Electronic Registration 
Process'' website, there were 780,884 total registrations received 
during the registration period for the FY 2024 H-1B cap.\9\ This was a 
significant increase over prior years. USCIS also stated on its website 
that, generally, there was an increase in the number of registrations 
submitted, the number of registrations submitted on behalf of 
beneficiaries with multiple registrations, and the number of 
registrations submitted on behalf of unique beneficiaries with only one 
registration.\10\ USCIS further noted on its website that the large 
number of eligible registrations for beneficiaries with multiple 
eligible registrations had raised serious concerns that some may have 
tried to gain an unfair advantage by working together to submit 
multiple registrations on behalf of the same beneficiary.\11\ As DHS 
noted in the proposed rule, beneficiaries who have multiple 
registrations submitted on their behalf have a significantly higher 
chance of selection, while an individual's chance of selection with a 
single registration is greatly reduced, as the number of beneficiaries 
with multiple registrations increases under the current system, 
increasing the number of registrations overall. Through this rule, DHS 
intends to remedy this situation by implementing the beneficiary 
centric selection process, where each beneficiary is expected to have 
the same chance of selection, regardless of the number of registrations 
submitted on their behalf.
---------------------------------------------------------------------------

    \9\ USCIS, ``H-1B Electronic Registration Process,'' https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-electronic-registration-process (last updated July 31, 2023).
    \10\ Id.
    \11\ Id.
---------------------------------------------------------------------------

    Comment: Referencing Tables 3 and 4 of the NPRM, a commenter 
remarked that this data was evidence of an increasing trend that 
undermined the registration system's fairness and efficiency. The 
commenter added that attention and action are needed to maintain the 
integrity of the registration system. Another commenter said that the 
information presented in Tables 2, 3, and 4 of the NPRM shows instances 
where individuals exploit the current registration system to enhance 
their chances of selection, thus diminishing the chance of selection 
for those with only one registration.
    Response: DHS agrees that tables 2, 3, and 4 in the NPRM show a 
concerning trend. As noted in the proposed rule, the data show that 
multiple registrations on behalf of the same individual are increasing, 
and this trend negatively affects the integrity of the registration 
system and selection process.

C. Beneficiary Centric Selection

1. General Support
    Comment: Several commenters expressed broad support for the changes 
to the registration system and implementation of a beneficiary centric 
selection process without providing additional rationale. Several other 
commenters expressed support for a system where individuals would only 
have one chance in the lottery and noted that the proposed measures 
would reduce multiple ``entries'' without providing additional 
rationale.
    Response: The commenters' reference to multiple ``entries'' is not 
entirely clear. DHS notes, however, that this rule

[[Page 7461]]

does not prohibit multiple registrations for the same beneficiary and 
will not necessarily reduce the number of registrations for the same 
beneficiary. The rule is intended to reduce the incentives for 
submitting multiple non-meritorious registrations on behalf of the same 
beneficiary. Changing how USCIS conducts the selection process to 
select by unique beneficiaries instead of registrations will 
significantly reduce or eliminate the advantage of submitting multiple 
registrations for the same beneficiary solely to increase the chances 
of selection and should give all beneficiaries an equal chance at 
selection.
    Comment: Many commenters expressed support for the proposed 
beneficiary centric selection process on the basis that the revisions 
are needed or overdue, and some said that making the selection process 
fair should be a high priority.
    Response: DHS agrees that revisions to the current selection 
process are needed to better ensure that the registration system 
continues to serve its purpose of efficiently and fairly administering 
the annual H-1B numerical allocations. DHS believes that a beneficiary 
centric selection process will likely provide each beneficiary with the 
same chance for selection without regard to the number of registrations 
submitted for each beneficiary and will structurally limit the 
potential for bad actors to game the system because working with others 
to submit multiple registrations for the same beneficiary will not 
increase their chance of selection under the beneficiary centric 
selection process. The final rule also provides that if USCIS 
determines that registrations were submitted for the same beneficiary 
by the same or different registrants, but using different identifying 
information, USCIS may find those registrations invalid and deny or 
revoke the approval of any H-1B petition filed based on those 
registrations. DHS believes that these changes are likely to provide an 
equal chance of selection for each beneficiary and significantly limit 
the potential for abuse of the registration process.
    Comment: Numerous commenters expressed support for the proposed 
beneficiary centric selection process on the basis that it would have 
positive impacts on the H-1B program overall, including increasing 
fairness. These commenters reason that:
     The proposed rule would enhance the fairness and integrity 
of the selection process overall and one individual should have one 
entry to the selection process, as it is unfair for individuals to have 
more than one chance;
     Providing all prospective beneficiaries with an equal 
opportunity in the selection system would promote social justice and 
ethical behaviors;
     Concerns with the current uncertainties in the selection 
process would be alleviated with the changes, which would enhance 
transparency and predictability in the selection process and help 
achieve the H-1B program's original objectives;
     The current process harms workers, such as graduates who 
submit a single entry due to dedication to their prospective employer; 
and
     Questions on the validity and efficiency of the U.S. 
immigration system were addressed and that the changes would help 
restore trust in the system.
    Response: DHS agrees with these commenters that the beneficiary 
centric selection process will likely increase fairness in the 
selection process, as well as enhance the integrity of the selection 
process overall. DHS anticipates that this change will also enhance 
transparency and predictability in the selection process by 
structurally limiting the potential for bad actors to game the system. 
As noted in the NPRM, DHS is aware that, under the registration-based 
selection process, an individual's chance of selection with a single 
registration is lower compared to beneficiaries who have multiple 
registrations submitted on their behalf and is optimistic that the new 
beneficiary centric selection system will increase fairness and help 
restore trust in the system.
    Comment: Many commenters supported the proposed registration 
selection process because it would reduce abuse in the system, 
reasoning that:
     The current system is abused by some companies and 
individuals, who submit multiple registrations on potential 
beneficiaries' behalf, unfairly strengthening their own chances, and 
reducing the chances of other applicants being selected;
     The revised process would curb fraud, misuse, and 
manipulation in the registration system, with some commenters 
additionally providing anecdotal accounts of fraud and abuse under the 
current system; and
     Changes to the current system are needed to address 
loopholes that allow fraudulent submissions.
    Response: DHS agrees that changes to the current system are needed 
to address misuse of the system and better ensure that the registration 
system continues to serve its purpose of efficiently and fairly 
administering the annual H-1B numerical allocations. DHS agrees that 
some registrants have attempted to abuse the registration process to 
improve the chance of selection for some beneficiaries while reducing 
the chances of selection of other potential beneficiaries. The 
beneficiary centric selection process in this final rule is designed to 
provide each beneficiary with the same chance for selection without 
regard to the number of registrations submitted for each beneficiary 
and will structurally limit the potential for bad actors to game the 
system because working with others to submit multiple registrations for 
the same beneficiary will not increase their chance of selection under 
the beneficiary centric selection process. Under the beneficiary 
centric process, USCIS will select by each unique beneficiary such that 
each beneficiary should have the same chance for selection, whether 
they are the beneficiary of one registration or one hundred 
registrations. DHS has a strong interest in ensuring that the annual 
numerical allocations are going to petitioners that truly intend to 
employ H-1B workers and anticipates that the revised selection process 
will reduce fraud, misuse, and manipulation in the registration system.
    Comment: Multiple commenters expressed support for the changes 
based on programmatic improvements with respect to reducing 
administrative burdens and the number of times the lottery must be run. 
These commenters remarked that the proposed changes would enhance 
efficiency and reduce the probability of needing to perform additional 
selection rounds. Commenters noted that duplicate registrations under 
the current selection method wasted limited cap H-1B numbers and 
created a time and cost burden for USCIS since the agency had to run 
the lottery multiple times. A few commenters also noted that running 
the lottery multiple times could negatively affect potential 
beneficiaries who cannot stay in the United States to wait for 
additional lottery rounds to be run.
    A couple of commenters discussed how losses for U.S. employers 
under the current system result in additional costs, administrative 
burdens, and instability. Some commenters noted that the proposed rule 
would reduce the administrative burden for companies aiming to register 
potential beneficiaries under the current registration system, 
streamlining the process for both registrants and government agencies. 
Additionally, a couple of commenters wrote that the proposed selection 
process would reduce administrative

[[Page 7462]]

and financial burdens on U.S. companies and employers.
    Response: DHS appreciates commenters for their feedback supporting 
the change to a beneficiary centric selection process and their 
assertions that this change will reduce administrative burdens for 
companies and enhance efficiency. Additionally, DHS appreciates the 
comments that some companies face hiring instability under the current 
registration-based selection process because the chance of selection is 
low; and, they may have been required to wait through multiple 
selection rounds to find out if their registration for a beneficiary 
had been selected. With respect to agency administrative burdens, even 
under the beneficiary centric selection process, it is possible that 
USCIS may be required to conduct more than one round of selections 
depending on how many petitions are filed based on valid registration 
selections following the initial or subsequent selection round. 
Therefore, DHS cannot forecast with certainty a reduction in 
administrative burdens resulting from fewer selection rounds. However, 
the beneficiary centric selection process may reduce the likelihood 
that USCIS will need to run the selection process more than once in a 
fiscal year and may achieve the multiple benefits discussed by the 
commenters. DHS also acknowledges the comments that running multiple 
selection rounds can negatively affect beneficiaries who are already in 
the United States and may not be able to stay through multiple 
selection rounds, and notes that the beneficiary centric registration 
process may help potential beneficiaries in this manner as well.
    Comment: Numerous commenters discussed the negative impact of the 
current selection process on fairness, stating that prospective 
beneficiaries with one registration or those who comply with H-1B 
policies struggle to be selected for an H-1B number due to ongoing 
abuse and decreasing selection rates. Some commenters noted that those 
who comply with registration requirements are unfairly disadvantaged or 
effectively penalized for their decision not to engage in fraud, which 
results in inverse selection bias and moral hazard and causes stress 
for beneficiaries. Many commenters expressed support for the proposed 
beneficiary centric selection and said that the proposed selection 
process would promote equity and fairness among prospective H-1B 
beneficiaries, and provide prospective beneficiaries with an equal 
opportunity for selection. Several commenters stated that the proposed 
process would improve opportunities for selection for individuals with 
one offer or registration and discourage ``unnecessary competition'' 
among beneficiaries.
    Response: DHS agrees with these commenters that the chances of 
selection in the current registration-based cap selection process are 
lower for beneficiaries with only one job offer and that this may be 
due, in part, to some registrants trying to game the system by working 
with others to submit multiple registrations for a single beneficiary. 
DHS agrees with these commenters that the new beneficiary centric 
selection process will increase fairness for registrants and 
beneficiaries and anticipates that changing the selection process will 
discourage organizations and beneficiaries from trying to game the 
system.
    Comment: A commenter stated that ethical and integrity-driven 
individuals are naturally disinclined to engage in fraudulent 
activities. The commenter indicated that the beneficiary centric 
selection process would, therefore, not only combat fraud but also 
foster an environment that prioritizes ethics and honesty. The 
commenter stated that preventing H-1B program abuse will safeguard the 
country's values and bolster the nation's economic and national 
security, among other benefits.
    Response: DHS appreciates the commenter's feedback on the various 
benefits of the beneficiary centric selection process and agrees that 
the new beneficiary centric selection process will increase fairness 
for all prospective beneficiaries.
    Comment: Some commenters expressed support for the proposed 
registration selection process on the basis of improved flexibility, 
greater autonomy, and more agency for beneficiaries. A few commenters 
wrote that the proposed process would empower candidates to select the 
employer for whom they ultimately work. Additionally, a commenter said 
that beneficiary centric selection would provide beneficiaries with 
better bargaining power, ensuring that employers do not undercut wages. 
Another commenter wrote that the proposed rule would allow 
beneficiaries to negotiate with companies for higher salaries upon 
selection, which the commenter said would create an ``imbalance in 
salaries.''
    Response: DHS generally agrees with these commenters. As noted in 
the NPRM, the new beneficiary centric selection process may benefit 
beneficiaries by giving them greater autonomy to choose the employer 
for whom they ultimately work without decreasing their chances of 
selection. 88 FR 72870, 72899 (Oct. 23, 2023). If multiple unrelated 
companies submit registrations for a beneficiary and the beneficiary is 
selected, then the beneficiary could have flexibility to determine 
which company or companies could submit an H-1B petition for the 
beneficiary, because all of the companies that submitted a registration 
for that unique beneficiary would be notified that their registration 
was selected and they are eligible to file a petition on behalf of that 
beneficiary. 88 FR 72870, 72899 (Oct. 23, 2023). While DHS cannot 
predict whether or how the beneficiary centric system would affect 
salaries, H-1B beneficiaries already possess and may exercise autonomy 
to change to another H-1B employer offering a higher salary or 
preferred work conditions.\12\
---------------------------------------------------------------------------

    \12\ See INA section 214(n), 8 U.S.C. 1184(n).
---------------------------------------------------------------------------

    Comment: Commenters discussed benefits and impacts on specific 
populations of prospective beneficiaries. For example, some commenters 
wrote that the proposed changes would ensure fairer opportunities for 
international students, particularly those on F-1 student visas. In 
addition, a commenter said that the proposed rule would make the 
process fairer for highly skilled workers, as the current system favors 
low-skilled workers who ``take the majority of the quota,'' through 
multiple registrations.
    Response: DHS's goal is to set a level playing field for all 
potential beneficiaries so that all beneficiaries may have a fair 
chance of selection through the revised beneficiary centric selection 
process.
    Comment: Several commenters expressed support for the proposed 
selection process, opining that it would benefit U.S. employers and 
companies. Multiple commenters, including a company, discussed 
challenges for employers to meet workforce needs under the current 
registration selection system, including: the inability to retain 
talent due to falling selection rates, the loss of talent as a result 
of prospective employees leaving their U.S. employers or the United 
States, hesitation among employers to hire foreign workers, 
disadvantages for small to medium enterprises that do not have the 
means to outsource their workforce, and hampering company efforts to 
expand, such as the inability to expand semiconductor design and 
manufacturing efforts.
    Many commenters remarked on how the proposed selection process 
would benefit employers or remediate the above challenges, stating that 
the

[[Page 7463]]

revisions would: generally align with or protect the interests of U.S. 
companies; allow U.S. companies to attract, increase, or retain foreign 
talent and a skilled workforce; promise a targeted or more precise 
allocation of visas to cater to the needs of U.S. employers; boost the 
confidence of U.S. employers to hire international workers; decrease 
disruption in the hiring and talent management process; increase the 
productivity and competitiveness of U.S. businesses; and benefit 
underserved businesses.
    Response: DHS appreciates the feedback that the beneficiary centric 
selection process will improve employers' ability to attract and retain 
foreign talent and lessen their administrative burden in managing a 
competitive workforce. DHS anticipates that this approach will create a 
more level playing field so that all beneficiaries may have a fair 
chance of selection. While DHS cannot gauge all of the impacts of this 
selection process, DHS appreciates the commenters' assessments that it 
may improve employee retention, increase productivity, and boost 
confidence in hiring international workers.
    Comment: Numerous commenters endorsed the beneficiary centric 
selection process based on potential outcomes for the U.S. economy 
overall. Many of these commenters expressed concern with the current 
selection process and its associated outcomes on the U.S. economy and 
workforce, including: preventing the United States from retaining 
skilled foreign workers; the loss of global competitiveness, 
particularly in the technology sector; stifled innovation and growth; 
job market distortion and unpredictable workforce availability, as a 
result of individuals accepting more offers than they can take; 
discrimination against industries that restrict the number of offers 
one can accept; harms to the education industry and universities 
through the loss of international students; and increased reliance on 
outsourcing, which negatively impacts tax revenue and the local job 
market.
    Commenters stated that the proposed selection process would 
positively impact the U.S. economy by: encouraging innovation and 
economic growth and fostering technological advancements, research 
breakthroughs, and entrepreneurship, which stimulate economic growth 
and job opportunities; bolstering the United States' competitive 
position in the global economy; benefitting U.S. and international 
workers who contribute to the U.S. economy; minimizing labor shortages; 
ensuring that the United States can attract highly skilled foreign 
professionals; ensuring a more stable and reliable immigration system 
that benefits the strength and resilience of the U.S. economy; and 
promoting diversity in the U.S. workforce.
    Multiple commenters endorsed the proposed selection process on the 
basis that it would give prospective beneficiaries the opportunity to 
remain in the United States and contribute to the U.S. economy, stating 
that:
     Difficulties with H-1B selection have caused prospective 
workers to leave the United States, with some commenters providing 
anecdotal remarks to support this view;
     By rewarding ``volume over veracity,'' the current system 
diminishes the ability of prospective beneficiaries to apply their 
skills in the U.S. job market; and
     Current abuse within the selection system deters companies 
from extending offers to international workers.
    In light of the above concerns, several commenters said that the 
proposed revisions to the selection process would instead encourage 
international talent to work in the United States and benefit foreign 
professionals who already contribute--or aspire to contribute--to the 
U.S. economy.
    Response: DHS appreciates these commenters' assessments that the 
new selection process will positively impact the U.S. economy and that 
the U.S. economy may benefit from foreign talent through a revised H-1B 
selection process. DHS anticipates that the beneficiary centric 
selection process will benefit U.S. companies and prospective 
beneficiaries who will contribute to the U.S. economy by creating a 
fairer selection process.
2. General Opposition
    Comment: An individual commenter opposed the beneficiary centric 
process on the grounds that it will decrease the chances of highly 
talented or highly qualified beneficiaries to be selected. The 
commenter explained that an extraordinary candidate should have a 
higher chance of selection compared to a less qualified candidate, and 
that it is unfair to give these different candidates the same chance of 
selection. The commenter stated that USCIS should act against 
fraudulent companies rather than decrease the chance of selection for 
highly talented or qualified individuals with multiple job offers.
    Response: Under the current registration-based selection process, 
beneficiaries with multiple legitimate job offers and registrations are 
potentially being crowded out by multiple registrations for 
beneficiaries with frivolous job offers. Therefore, an individual's 
chance of selection based on one or two registrations is much less than 
the chance of selection based on, for example, 80 plus registrations as 
was seen in FY 2023. The new beneficiary centric selection process is 
designed to provide all individuals, even those with legitimate 
multiple registrations, with an equal chance of selection as opposed to 
the diminished chances under the current process. DHS recognizes that 
the change to the beneficiary centric selection process could 
potentially decrease the chance of selection for some beneficiaries 
with multiple job offers. It, however, is not clear from the comment 
whether or how the population of beneficiaries with multiple job offers 
overlaps with the population of ``extraordinary candidates,'' as the 
selection process does not take into account the beneficiary's 
qualifications. Even if there is such an overlap, DHS believes the 
benefits of leveling the playing field for all beneficiaries outweigh 
the possible negative consequences to some individuals. Moreover, 
extraordinary or highly qualified candidates may have options outside 
of cap-subject H-1B employment and could obtain employment in the 
United States through alternate paths, such as employment with a cap-
exempt H-1B petitioner or an O-1 nonimmigrant visa. Additionally, DHS 
appreciates other commenters' feedback that certain industries or 
companies have ethics rules that prevent individuals from accepting job 
offers from more than one company at a time, and by extension, prevent 
them from having multiple H-1B registrations submitted on their behalf. 
As these commenters have indicated, the number of registrations an 
individual has is not always an accurate proxy of their talent or 
desirability as a candidate for employment.
    Finally, because the H-1B registration process is merely an 
antecedent procedural step before the H-1B petition may be properly 
filed and adjudicated, and is not itself an adjudication, DHS does not 
believe that it could implement a selection process based on a relative 
comparison of various beneficiaries' qualifications and still retain 
the original aim for creating the registration process in the first 
place--an efficient process based on minimum information necessary to 
administer the annual statutory H-1B numerical allocations.
    Comment: A commenter stated it opposes the rule because, as an 
organization, it relies on students who

[[Page 7464]]

are not selected in the H-1B lottery for its profits.
    Response: DHS disagrees with this comment. The purpose of the 
registration system is to provide for the fair and orderly 
administration of the annual H-1B numerical allocations, not to provide 
profits for certain companies. DHS strongly supports fairness in the 
selection process and believes that the beneficiary centric selection 
process in this final rule will provide each beneficiary with the same 
chance for selection.
3. Identifying Information and Passport Requirement
    Comment: Several commenters stated that the use of passport numbers 
as identifying information would help mitigate fraud and promote 
fairness in the registration system by providing everyone with an equal 
chance in the beneficiary centric selection process. In addition to 
promoting fairness, a commenter remarked that the use of a unique 
passport number adds an additional layer of transparency and 
traceability to the selection process, which minimizes the potential 
for manipulation or bias. A commenter expressed support for the 
requirement, reasoning that citizens from countries where visas are 
mandatory to enter the United States already submit passport 
information.
    Response: DHS agrees with these commenters that the requirement of 
a passport number at the time of registration under the beneficiary 
centric selection process will help mitigate fraud and abuse of the 
registration selection process. In response to other public comments 
discussed in this preamble, DHS has decided to modify this proposed 
requirement in this final rule by expanding the types of acceptable 
documents so that the registration must include either the 
beneficiary's valid passport information or valid travel document 
information. DHS is making this modification in order to narrowly 
accommodate stateless individuals, refugees, and other individuals who 
are unable to obtain valid passports. DHS believes that this modified 
requirement of a passport or travel document will still help to 
mitigate fraud by allowing USCIS to accurately identify each unique 
beneficiary, which is integral to the integrity of the beneficiary 
centric selection process and the goal of creating a fairer 
registration system.
    Comment: Some commenters stated that the proposed rule does not 
indicate how USCIS will review petitions that have explainable 
discrepancies. The commenters suggested that DHS clarify in the 
regulations that a petition with explainable discrepancies will be 
receipted by USCIS and that the petitioner will be provided an 
opportunity to explain the discrepancy.
    Response: As proposed, new 8 CFR 214.2(h)(8)(iii)(D)(1) provides 
that USCIS may deny an H-1B petition or revoke an approved H-1B 
petition if there is a change in the beneficiary's identifying 
information from registration to petition filing. The regulatory text 
does not state that USCIS will reject an H-1B petition if there is a 
change in the beneficiary's identifying information. As further 
explained in the NPRM, USCIS will typically afford the petitioner the 
opportunity to respond when identifying information provided on the 
registration does not match the information provided on the petition, 
and petitioners would need to be prepared to explain and document the 
reason for any change in identifying information. 88 FR 72870, 72898 
(Oct. 23, 2023). DHS believes that the regulatory text, combined with 
the preamble explanation in the NPRM and this explanation, is 
sufficiently clear to explain that USCIS will receive these petitions 
and that the petitioner will have the opportunity to explain the 
discrepancies prior to denial or revocation.
    Comment: Several commenters expressed appreciation for USCIS' 
effort to reduce fraud in the H-1B selection process but at the same 
time expressed concern over potential impacts on stateless individuals, 
refugees, and other persons who are unable to obtain valid passports. 
For instance, an individual commenter stated that USCIS should also 
accept registrations for beneficiaries who are refugees and cannot 
obtain a passport from their country of origin. The commenter suggested 
that USCIS use other travel documents from countries of refugees 
instead of only passports. The commenter added that these documents 
contain identification numbers similar to passport numbers, and that 
existing Department of State practices permit visas to be issued on 
these documents. An individual commenter expressed their belief that it 
is unfair to bar stateless individuals from obtaining a cap-subject H-
1B visa, which would severely restrict the ability of U.S. employers to 
hire these individuals. A joint comment from two advocacy groups 
commended USCIS' ``demonstrated concern for stateless individuals'' and 
stated that USCIS should allow individuals to provide a unique 
identifier other than a passport, accompanied by an explanation of why 
they cannot obtain a valid passport. Another commenter expressed 
concern that the requirement to submit valid passport information would 
prevent employers from submitting registrations for stateless 
individuals, those unable to extend or renew passports, refugees, 
people who have fled their countries, and individuals with lost or 
expired passports. The commenter suggested that the registration 
process should have an option for registrants to attest that 
beneficiaries are stateless, with additional data requirements 
verifying identity for this group such as asking for an A-number or an 
employment authorization document (EAD) card number that could serve as 
an acceptable identification substitute for the passport number. A 
different commenter suggested USCIS accept ``alternative identity 
documentation, provided by a national, State, or local government or an 
international organization,'' out of concern for stateless individuals, 
refugees, other individuals who were forced to flee their country 
without passports, and other individuals who are unable to obtain valid 
passports. Another commenter similarly suggested that DHS accept 
alternative documents ``including other federal or State issued 
identification documents that provide similar security integrity 
safeguards'' as passports. Other commenters suggested adding a 
disclaimer on the registration that falsely claiming to be a stateless 
individual will result in the denial of a subsequently filed H-1B cap 
petition and revocation of the registration selection notice. A comment 
from multiple members of Congress recommended that DHS ``create an 
exception to the passport requirement for stateless individuals and 
those who are unable to obtain a valid passport due to extraordinary 
circumstances outside their control.''
    Response: In light of these comments--and consistent with the 
Administration's dedication to promoting access for refugees and 
stateless individuals--DHS is allowing either the beneficiary's valid 
passport information or valid travel document information to be 
submitted for H-1B registration purposes. See new 8 CFR 
214.2(h)(8)(iii)(A)(4)(ii) and 214.2(h)(8)(iii)(D)(1). As stated above, 
this modification is intended to narrowly accommodate stateless 
individuals, refugees, and other individuals who are unable to obtain 
valid passports. DHS believes that it is important to accommodate 
especially vulnerable populations, such as stateless individuals and 
refugees. At the same time, this narrow accommodation is not expected 
to

[[Page 7465]]

significantly increase the risk that a beneficiary would be registered 
under more than one identity document, as a valid travel document that 
the beneficiary intends to use to enter the United States is inherently 
limited to a single document.
    DHS declines to allow additional types of identifying documentation 
for H-1B registration purposes. While a narrow accommodation to the 
passport requirement is not expected to significantly increase the risk 
that a beneficiary would be registered under more than one identity 
document, DHS believes that allowing additional identifying 
documentation would make the registration system more susceptible to 
abuse. Adding more types of acceptable documentation will heighten the 
likelihood that beneficiaries would have more than one document that 
could be used for registration to game the system and give them more 
than one chance in the selection. For example, a beneficiary could have 
multiple EAD card numbers or have both an EAD card number and a 
passport number. However, DHS does not believe that an individual would 
likely have both a valid passport and a valid travel document that they 
intend to use to enter the United States in H-1B status; it is unclear 
what legitimate reason an individual would have to use both a valid 
passport and another valid travel document when seeking to enter the 
United States in H-1B status. Further, ``alternative identity 
documentation provided by a national, State, or local government or an 
international organization'' or ``other federal or state issued 
identification documents'' could encompass a broad range of documents 
of varying credibility which increases the potential for abuse. For 
instance, an ``alternative identity document'' could include a state or 
provincial identity card, driver's license, cedula, matricula consular, 
or other civil identity or vital statistics document which is not 
considered a travel document and is not valid for entry to or departure 
from the United States by air.\13\ It is not clear what advantage would 
be gained by expanding the universe of acceptable documents to an EAD 
card or another alternative identity document that cannot be used to 
enter the United States in H-1B status, in line with the purpose of 
submitting a registration for the prospective beneficiary in the first 
place, compared to the increased risk for fraud that broadening the 
universe of acceptable documents would pose.
---------------------------------------------------------------------------

    \13\ CBP, ``Carrier Information Guide: United States Document 
Requirements for Travel,'' https://www.cbp.gov/sites/default/files/assets/documents/2023-Nov/Carrier%20Information%20Guide%20ENGLISH.pdf (stating that ``National 
identity cards, cedulas, matriculas consular, certificates of 
citizenship, certificates of naturalization and other civil identity 
or vital statistics documents are NOT considered travel documents 
and are NOT valid for departure from the U.S. by air,'' and listing 
a driver's license, birth certificate, matricula consular, cedula, 
and national identification card as among the examples of documents 
that are ``not acceptable for entry to or departure from the United 
States.'').
---------------------------------------------------------------------------

    DHS also declines to add a new attestation on the registration that 
falsely claiming to be a stateless individual will result in the denial 
or revocation of the H-1B petition, or finding the registration 
invalid. As stated above, DHS has modified the passport requirement to 
also allow for a valid travel document. While this modification is 
intended to narrowly accommodate stateless individuals, refugees, and 
others who are unable to obtain valid passports, it is not limited to 
such individuals; thus, it is not necessary to add a new attestation 
regarding false claims of statelessness or other claims regarding why 
an individual does not have a valid passport. In addition, the 
registration tool continues to ask for the beneficiary's country of 
citizenship and provides an option for the registrant to list the 
beneficiary as ``stateless.'' The registration tool also continues to 
require the registrant to certify, under penalty of perjury, that they 
have reviewed the registration(s) and that all of the information 
contained in the submission is complete, true, and correct.
    Comment: A commenter stated that, while passport information is 
helpful, ``there are legitimate reasons why a registrant may be unable 
to provide valid passport information, and excluding those registrants 
is antithetical to ensuring they can petition for the best and 
brightest.'' The commenter noted that it is reasonable to assume that 
some individuals may not have valid passports at the time of 
registration but would be able to obtain them by the time of filing a 
petition, and suggested DHS retain the option to allow beneficiaries to 
register if they certify that they do not have a valid passport.
    Response: As noted above, DHS will retain the passport requirement 
in the final rule but has modified the proposed passport requirement to 
also allow for a valid travel document. Requiring valid passport or 
travel document information, combined with the other collected 
biographical information, will allow USCIS to identify unique 
individuals more reliably, increasing the likelihood that each 
individual would have the same opportunity to be selected, if random 
selection were required. While DHS recognizes that some individuals may 
not possess a valid passport or travel document, DHS has a strong 
interest in requiring passport or travel document information for each 
beneficiary, regardless of nationality, to better identify unique 
beneficiaries and enhance the integrity of the H-1B registration 
system. Further, and consistent with what DHS stated in the NPRM, DHS 
believes that requiring passport or travel document information is 
reasonable because each registration should represent a legitimate job 
offer. In the absence of a valid passport or travel document, it is not 
clear how most beneficiaries could enter the United States in H-1B 
status pursuant to that job offer. Therefore, this rule will only 
accelerate the time by which the beneficiary needs to obtain a passport 
or travel document if the beneficiary does not already have one of 
those documents. See 88 FR 72870, 72898 (Oct. 23, 2023).
    Comment: Several commenters expressed concerns with fraud related 
to the passport requirement. These commenters indicated that a passport 
number alone is insufficient to identify a unique beneficiary because 
individuals are able to obtain multiple passports or fraudulent 
passports. For example, a commenter said that people with dual 
citizenship or citizenship in multiple countries could potentially 
exploit the registration system by filing with different passport 
numbers and country of issuance. One commenter mentioned the potential 
exploitation of the system from individuals using multiple identities 
or passports from different countries, while a couple of other 
commenters expressed concern that individuals might abuse or circumvent 
the proposed passport requirement and discussed the importance of using 
additional identifiers to avoid potential fraud.
    Several commenters provided alternatives related to identifying 
information, suggesting that USCIS:
     Link a registration or the definition of ``unique'' to an 
individual's Social Security number (SSN) or Individual Taxpayer 
Identification Number (ITIN);
     Require a history of passports;
     Include a declaration of authenticity or an affirmation of 
truth;
     Require additional information, including the name, date 
of birth, place of birth, and similar information in addition to 
passport information;
     Verify passport information provided on registrations and 
petitions are correct and legitimate;
     Require a photograph (and use face recognition technology) 
at registration, or require both a photo and passport

[[Page 7466]]

number to be submitted on the visa petition and with any lottery 
registration application to ensure the beneficiary is the same person 
at every step;
     Use an alternative process where a prospective beneficiary 
submits a registration with their personal information (including 
passport information) to USCIS, and USCIS will send that prospective 
beneficiary a confirmation PDF containing a unique confirmation number 
employers can then use to identify and register the beneficiary; and
     Require prospective beneficiaries to ``provide biometric 
information during the application process.''
    Response: DHS has considered the concern of potential exploitation 
through using fraudulent passports or multiple passports. DHS believes 
that using a passport number as a unique identifier is a reasonable 
approach that appropriately balances the interests of integrity in the 
selection process with access to the registration system. DHS also 
believes its expansion to allow for a valid travel document in lieu of 
a valid passport does not significantly increase the risk of 
exploitation through using fraudulent or multiple travel documents, 
particularly since a valid travel document that the beneficiary intends 
to use to enter the United States is inherently limited in scope. 
Further, the regulations clearly state that a beneficiary may only be 
registered under one passport or travel document. See new 8 CFR 
214.2(h)(8)(iii)(A)(4).
    The final rule also contains other safeguards that are sufficient 
to address potential exploitation. The regulations at new 8 CFR 
214.2(h)(8)(iii)(A)(2), make clear that a beneficiary having multiple 
registrations filed on their behalf using different identifying 
information is grounds for finding the registrations invalid and 
denying, or revoking the approval of, any H-1B petition filed on their 
behalf. Thus, if USCIS determines that registrations were submitted for 
the same beneficiary but using different passport information, USCIS 
would have the authority to invalidate such registrations and deny or 
revoke the approval of any H-1B petition filed based on those 
registrations under new 8 CFR 214.2(h)(8)(iii)(A)(2). USCIS may do so 
even if the beneficiary had more than one valid passport or travel 
document, such as a beneficiary with dual citizenship who has passports 
issued by different countries.\14\
---------------------------------------------------------------------------

    \14\ See ``Modernizing H-1B Requirements, Providing Flexibility 
in the F-1 Program, and Program Improvements Affecting Other 
Nonimmigrant Workers,'' 88 FR 72870, 72898 (Oct. 23, 2023) (``Even 
if a beneficiary had more than one valid passport, such as a 
beneficiary with dual citizenship, a beneficiary would only be able 
to be registered under one of those passports.'').
---------------------------------------------------------------------------

    USCIS will also continue to require information on a beneficiary's 
legal name, date of birth, and country of birth as part of the 
registration process. USCIS will use this information to analyze 
registration information and identify instances where beneficiaries are 
registered with different identifying information. When USCIS 
identifies such instances, any H-1B petition filed for that beneficiary 
may be subject to denial or revocation.
    With respect to comments that suggested USCIS use a Social Security 
number or individual taxpayer identification number as a unique 
identifier, DHS believes requiring a Social Security number or 
individual taxpayer identification number would not be feasible as 
individuals who have never held H-1B status or another nonimmigrant 
status or employment authorization in the United States likely would 
not have such numbers. In regard to the suggestion to collect 
biometrics, including photos, for beneficiaries prior to the 
registration process, DHS notes that collecting biometrics for all 
beneficiaries prior to registration would be operationally infeasible 
for USCIS and would add additional burdens for beneficiaries, 
especially those overseas. In regard to the suggestion to collect a 
history of passports, DHS believes this would be overly burdensome for 
USCIS, registrants, and beneficiaries. DHS will collect sufficient 
information to enable USCIS to identify the beneficiary of the 
registration, check for duplicate registrations submitted by the same 
prospective petitioner, and match selected registrations with 
subsequently filed H-1B petitions, without overly burdening the 
employer or collecting unnecessary information, in compliance with the 
Paperwork Reduction Act (PRA). Requiring a valid passport or valid 
travel document strikes the balance between protecting the integrity of 
the registration system and maintaining accessibility to the 
registration system and the H-1B program.
    With respect to the suggestion that USCIS include an affirmation of 
truth on the registration, in completing the H-1B registration, the 
registrant must already certify, under penalty of perjury, that the 
information contained in the registration is complete, true and 
correct. The registrant must also certify that the registration 
reflects a legitimate job offer, and that the registrant intends to 
file an H-1B petition on behalf of the individual named in the 
registration. DHS believes the existing attestations are sufficient.
    DHS also considered the suggestion that USCIS use an alternative 
process where a prospective beneficiary receives a unique confirmation 
number from USCIS after submitting their passport number, which the 
beneficiary would then give to potential employers to enter in the 
registration system. This alternative process, however, would not be 
any more effective than identifying a prospective beneficiary by their 
valid passport or travel document information as provided by a 
prospective petitioner or its representative because DHS would continue 
to rely on the beneficiary to provide accurate information to both DHS 
and the prospective petitioner or its representative. This two-step 
process would add additional time to the overall registration period 
with no explanation provided of how it would enhance identity 
verification more than the proposed beneficiary centric process.
4. Implementation and Effective Date
    Comment: Numerous commenters requested that USCIS implement the 
rule for the FY 2025 cap season (the H-1B registration period and 
related selection process beginning in March 2024). Many commenters 
requested the proposed rule be implemented as soon as possible. A 
couple of commenters similarly requested swift implementation of the 
proposed rule with no specified timeframe, while a few commenters 
remarked that they hope the proposed rule could take effect ``right 
now''. One commenter stated it is likely that multiple registrations 
will ``skyrocket'' this upcoming H-1B cap season without immediate 
implementation of the beneficiary centric provision. Additionally, a 
commenter asked DHS to consider whether this portion of the NPRM should 
proceed separately and be promulgated as an interim final rule as soon 
as possible in order to ensure that it is in effect in advance of the 
2024 cap registration cycle.
    Multiple commenters stated that quick implementation of the 
proposed rule would increase fairness, equity, and integrity in the 
registration process. A commenter said that the planned implementation 
for the FY 2025 H-1B cap season demonstrated the government's 
commitment to improving the immigration system. Another commenter 
stressed the need for implementation ``before next year's selection 
process,'' reasoning that potential beneficiaries have time constraints 
for getting the H-1B visa

[[Page 7467]]

when they work with F-1 OPT or STEM OPT.
    Response: DHS agrees with the need for prompt implementation of 
this rule. This rule will be effective in time for the FY 2025 H-1B cap 
season (the H-1B registration period and related selection process 
beginning in March 2024).
    Comment: Some commenters encouraged DHS to separate and move 
forward with the proposed H-1B registration changes for the upcoming 
cap season, but to refrain from finalizing any of the other provisions 
until it has sufficiently considered stakeholder feedback. Another 
commenter requested DHS to consider implementing these changes in 
phases so that stakeholders will be aware of what is coming.
    Response: As stated above, DHS will finalize the proposed H-1B 
registration changes and other registration-related provisions in time 
for the FY 2025 H-1B cap season. DHS continues to consider public 
comments received on the other proposed changes included in the October 
23 NPRM and plans to issue a separate final rule to finalize or 
otherwise address those proposed changes.
5. Other Comments on the Beneficiary Centric Selection Process
    Comment: A few commenters requested clarification on the process 
for registrants after a beneficiary is selected. A commenter asked 
whether USCIS would adjudicate all petitions filed for a beneficiary or 
whether the Department would randomly select an employer. Another 
commenter encouraged DHS to clarify whether it permits all selected 
registrants to file an H-1B petition or if it will only allow one of 
the selected registrants to proceed. Additionally, a commenter asked 
DHS to include a clearly defined systemic mechanism that allows 
employers to know how to submit the sponsoring petition if a 
beneficiary has had multiple employers submit a registration on their 
behalf thereby eliminating the need for employers to solely rely on 
their beneficiaries to share this information.
    Response: Where a selected beneficiary has multiple H-1B petitions 
that are properly filed on their behalf based on valid registrations, 
USCIS will adjudicate each petition. DHS did not propose to, nor will 
it, randomly select an employer whose petition it will adjudicate. As 
the NPRM states, if a beneficiary were selected, each registrant that 
submitted a registration on that beneficiary's behalf would be notified 
by USCIS of selection and would be eligible to file a petition on that 
beneficiary's behalf.\15\ This is not a change from the current 
registration system, under which more than one registrant can register 
for the same beneficiary and any selected registrant is eligible to 
file an H-1B petition on behalf of that beneficiary if the petition is 
based on a valid registration selection notice. More than one 
registrant can file a petition on behalf of a single selected 
beneficiary and USCIS will adjudicate all properly filed petitions. DHS 
has no role in deciding which registrants ultimately choose to file a 
petition based on their selected beneficiary. It is expected that 
registrants will communicate with the selected beneficiary to make 
informed decisions regarding whether to file an H-1B petition.
---------------------------------------------------------------------------

    \15\ ``Modernizing H-1B Requirements, Providing Flexibility in 
the F-1 Program, and Program Improvements Affecting Other 
Nonimmigrant Workers,'' 88 FR 72870, 72898 (Oct. 23, 2023) (``If a 
beneficiary were selected, each registrant that submitted a 
registration on that beneficiary's behalf would be notified of 
selection and would be eligible to file a petition on that 
beneficiary's behalf. See proposed 8 CFR 214.2(h)(8)(iii)(A)(1) and 
(4).'').
---------------------------------------------------------------------------

    Comment: Several commenters noted concerns with allowing multiple 
registration entries for an individual, and suggested changes to the 
registration system to prohibit or reject multiple registrations for a 
single beneficiary. One commenter suggested that only the submission 
for a beneficiary from the ``most current employer'' should be valid 
and all others voided. Another commenter specified that DHS should not 
only eliminate the ability for related entities to submit a single 
registrant multiple times, but also prevent unrelated registrants from 
submitting multiple registrations for a beneficiary. Some of these 
commenters stated generally that multiple registrations should not 
increase the chance a beneficiary is selected, as submitting multiple 
entries for one individual is unfair to other individuals. 
Additionally, a commenter remarked that duplicate entries for 
beneficiaries by consultancies undermines the fairness of the selection 
process. Another commenter, expressing support for the proposed 
registration process, remarked on other negative impacts of current 
abuse on the H-1B program stating that since H-1B holders can legally 
work for only one employer at a time, there is no rationale for 
selecting multiple entries for a potential beneficiary in the lottery 
system and wasting USCIS resources.
    Response: Like the commenters, DHS is concerned with the integrity 
of the registration system and attempts to circumvent the selection 
process under the current registration system. As such, the focus of 
this rule is to ensure that each individual beneficiary has an equal 
chance of selection and to remove the advantage of submitting multiple 
registrations for the same beneficiary to increase the chances of 
selection. However, DHS declines to restrict the registration process 
to one total registration per beneficiary. DHS acknowledges that there 
could be legitimate reasons for an individual to have more than one 
registration submitted on their behalf. Moreover, the beneficiary 
centric selection process will essentially accomplish the goal these 
suggestions seek to achieve, which is to ensure that each individual 
beneficiary has an equal chance of selection and reduce fraud.
    Comment: Some commenters expressed the need for DHS to allow 
registrants to view if multiple registrations have been submitted for a 
beneficiary. For instance, a commenter generally supported the proposed 
beneficiary centric system but expressed a need to ``[ensure] fairness 
for employers who invest in foreign national talent'' by providing 
employers with visibility into a beneficiary's multiple registrations. 
The commenter recommended that USCIS include in the selection 
notification to employers an indication of either: (1) the number of 
employer registrations; or (2) whether the beneficiary has one or 
multiple employer registrations. The commenter stated that such 
information will help employers make more informed decisions when 
deciding to invest significant resources to file an H-1B petition and 
will also help reduce any legal consequences that may arise from 
multiple petitions being approved for the same beneficiary. Other 
commenters similarly requested USCIS to institute a mechanism that 
informs a potential employer that a beneficiary has more than one 
registration. One commenter suggested it would be fair for the U.S. 
employer to see if the beneficiary has multiple registrations because 
the H-1B is employer-sponsored.
    Response: While DHS agrees that the H-1B process is employer-
sponsored, DHS declines to make these suggested changes. It is expected 
that prospective petitioners will communicate with their selected 
beneficiaries to make informed decisions regarding whether to file an 
H-1B petition. DHS also notes that the beneficiary centric selection 
process does not substantially differ from the current registration-
based selection process in this regard and remains an employer-driven 
process given that registrations and petitions will continue to be 
submitted by sponsoring

[[Page 7468]]

employers. A beneficiary in the current registration-based selection 
process may have multiple valid registrations selected that were 
submitted on their behalf by different companies, and thus have 
multiple petitions filed on their behalf by different companies based 
on those valid registration selection notices. Allowing for multiple 
cap petitions is consistent with INA section 214(g)(7), 8 U.S.C. 
1184(g)(7), which states that when multiple cap petitions are filed and 
approved for a beneficiary, the beneficiary shall only be counted once 
toward the H-1B numerical allocations. DHS also believes that the 
commenter's suggestions regarding sharing information about 
registrations submitted by other prospective petitioners for a selected 
beneficiary goes beyond the intent of the narrow changes implemented in 
this final rule, which is to better ensure that each unique beneficiary 
has the same chance of selection in the H-1B registration selection 
process. As such, DHS declines to adopt the commenters' suggestions.
    Comment: A commenter expressed support for allowing all companies 
that submitted a registration for a selected beneficiary to file an H-
1B petition. The commenter noted possible negative consequences of not 
limiting the number of H-1B petitions that can be submitted for a 
selected beneficiary but concluded that allowing all companies that 
submitted a registration for a selected beneficiary to file an H-1B 
petition is ``a good solution.'' For example, the commenter noted that 
requiring a beneficiary to choose only one employer upon which to 
proceed with H-1B filing will be detrimental to the beneficiary if that 
sole petition is not approved or if it is approved and the beneficiary 
loses the job after approval but before the effective date.
    Response: DHS appreciates the commenter's feedback and confirms 
that generally all prospective petitioners that properly submitted a 
registration for a selected beneficiary will be eligible to file an H-
1B petition for the beneficiary named in their registration selection 
notice during the applicable filing period, provided that they are not 
related entities without a legitimate business need to file multiple 
cap petitions.
    Comment: Some commenters requested clarity on how multiple H-1B 
petition approvals would affect a beneficiary's status. A commenter 
urged DHS to ``clarify and codify that each approved H-1B petition is 
valid, and that neither the date of filing, the date of adjudication 
(benefiting those filing with premium processing), or the requested 
start date (for those chosen in later selections) impact the validity 
of an approved H-1B petition, and that the beneficiary can commence 
work under any of the approved petitions even if another petition in 
the same H-1B filing period is subsequently approved.'' Another 
commenter asked for clarity regarding possible status issues that could 
result from the current NPRM, including clarifying that a petition is 
only ``active'' when the beneficiary begins to work for the petitioner. 
This commenter stated that such clarification will be particularly 
important if DHS finalizes its proposal regarding a flexible start 
date. A different commenter asked for clarification that ``any filed 
and approved petitions will remain valid until withdrawal by the 
petitioner'' and noted that multiple petition approvals requesting 
change of status may cause confusion regarding the beneficiary's 
status.
    Response: The filing of multiple petitions for the same beneficiary 
has always been a possibility, such as in concurrent employment 
situations. DHS confirms that an approved H-1B petition may remain 
valid notwithstanding the subsequent approval of an H-1B petition for 
the same beneficiary. DHS further confirms that upon approval of a cap-
subject petition, including a request for change of status, the 
starting validity date will be the start date reflected on Form I-797, 
Notice of Action (Approval Notice), notwithstanding the date of filing, 
the date of adjudication, or the requested start date on the petition. 
DHS also confirms that a beneficiary may commence work under any of the 
approved petitions as long as they remain valid and the beneficiary is 
in H-1B nonimmigrant status, as is the case under current practice. 
Given that the regulation states that a petitioner shall immediately 
notify USCIS of any changes in the terms and conditions of employment 
of a beneficiary, DHS reminds petitioners of their obligation to file 
new or amended petitions where appropriate and their ability to 
withdraw petitions where appropriate. See 8 CFR 214.2(h)(11)(i)(A), 
(iii)(A)(1).
    DHS would also like to clarify that providing start date 
flexibility does not impact the beneficiary's status when multiple 
petitions are filed but is a narrow revision codifying current practice 
that allows a later start date when there are multiple rounds of 
selection, and the petition filing window extends beyond October 1. As 
explained in the NPRM, other restrictions on the petition start date 
will remain in place, such as the requirement that a petition may not 
be filed earlier than 6 months before the date of actual need. See 8 
CFR 214.2(h)(2)(i)(I).
    Comment: A few commenters indicated that DHS should not allow more 
than one petition per beneficiary. A commenter requested that DHS 
provide, in regulation, a process that USCIS would allow only one 
petition per beneficiary to be filed at a time, which would reduce the 
risk of multiple filings and prevent unnecessary use of USCIS 
resources. Under this process, if a petition is denied other than due 
to fraud or misrepresentation, a selected beneficiary could then pursue 
H-1B status through other employers that submitted registrations on 
their behalf. Another commenter noted that ``allowing multiple 
petitions would result in unnecessary inefficiencies for both USCIS and 
petitioning employers.''
    Response: With respect to the suggestion that DHS restrict the 
petition filing process to one total petition per beneficiary, DHS 
declines to make this change. Under current practice, the filing of 
multiple petitions for the same beneficiary has always been a 
possibility, and the beneficiary centric process is not designed to 
change this practice.
    Section 214(g)(7) of the INA, 8 U.S.C. 1184(g)(7), specifically 
contemplates that more than one petition can be filed for a beneficiary 
(``Where multiple petitions are approved for 1 alien, that alien shall 
be counted only once''). Thus, such a limitation may not be consistent 
with that statute. DHS also acknowledges that there could be legitimate 
reasons for an individual to have more than one petition filed by 
different petitioners on their behalf.

D. Start Date Flexibility for Certain H-1B Cap-Subject Petitions

    Comment: Multiple commenters expressed broad support for the 
proposal to permit start date flexibility for certain H-1B cap-subject 
petitions, with one stating that the change to permit requested start 
dates on or after October 1 of the relevant fiscal year will benefit F-
1 students and universities and another stating that the change 
``codifies the elimination of a confusing ``trap'' for ``visa lottery'' 
H-1B visa petitioners.'' One commenter asked the agency to explicitly 
provide start date flexibility in situations where a requested validity 
period ends before the petitioner receives the approval notice.
    Response: DHS agrees with the comments that providing start date 
flexibility for certain H-1B cap-subject petitions will be beneficial 
in many ways. As stated in the NPRM, this

[[Page 7469]]

proposal will align the regulations related to H-1B cap-subject 
petitions with current USCIS practice, which is to permit a requested 
petition start date of October 1 or later, as long as the requested 
petition start date does not exceed 6 months beyond the filing date of 
the petition. 88 FR 72870, 72888, 72898 (Oct. 23, 2023). The request to 
provide start date flexibility in situations where a requested validity 
period ends before the petitioner receives the approval notice does not 
align with the changes that DHS proposed in the NPRM about the start 
date, which was to remove the language at 8 CFR 214.2(h)(8)(iii)(A)(4) 
that limited the requested start date when filing a cap-subject 
petition. Rather, this request aligns with the proposed ``Validity 
Expires Before Adjudication'' provision at 8 CFR 214.2(h)(9)(ii)(D)(1) 
of the NPRM. DHS is not finalizing that provision in this rule. The 
start date flexibility provision relates only to the flexibility in 
start date that petitioners may use on cap subject H-1B filings, as 
described in the NPRM, allowing start dates after October 1 of the 
applicable fiscal year.

E. Registration Related Integrity Measures

1. Bar on Multiple Registrations and Petitions Submitted by Related 
Entities Without a Legitimate Business Need
    Comment: Some commenters expressed general support for the bar on 
multiple registrations submitted by related entities at proposed 8 CFR 
214.2(h)(2)(i)(G). A few commenters wrote that the proposed bar would 
help reduce fraud and exploitation of the selection process. 
Additionally, a few commenters reasoned that the proposed provision 
would promote equity and fairness in the selection process, noting that 
the proposed provision mirrors the existing restrictions on filing 
multiple cap-subject petitions. Furthermore, a commenter remarked that 
the proposal would reinforce legitimate business needs as the basis for 
selection.
    Response: DHS appreciates the commenters' feedback but has decided 
not to finalize the proposed bar on multiple registrations submitted by 
related entities at this time, although DHS intends to address and may 
finalize this proposed provision in a subsequent final rule. While the 
intention behind this provision is to reduce fraud in the selection 
process, changing the structure of the registration process to a 
beneficiary centric selection process will reduce fraud and abuse of 
the registration process and more time and data will help inform the 
utility of this proposed provision.
    Comment: A commenter applauded the change to a beneficiary centric 
registration system but opined that this change ``makes unnecessary any 
requirement that related entities prove a legitimate business need to 
file multiple petitions for the same beneficiary'' under current 8 CFR 
214.2(h)(2)(i)(G). The commenter ``urge[d] USCIS to delete the portion 
of 8 CFR 214.2(h)(2)(i)(G) dealing with related entities in its 
entirety.'' Other commenters similarly questioned the need to restrict 
multiple petitions by related entities under the beneficiary centric 
system, with one commenter stating that, in reality, some related 
entities are so large that they do not communicate and/or coordinate 
workforce issues with each other.
    Response: DHS declines to make any changes to current 8 CFR 
214.2(h)(2)(i)(G) at this time. DHS did not propose to eliminate or 
alter current 8 CFR 214.2(h)(2)(i)(G) with respect to multiple 
petitions by related entities without a legitimate business need. As 
stated in the NPRM, if registration were suspended, this bar on 
multiple petitions would remain relevant. 88 FR 72888, 72900 (Oct. 23, 
2023). Even when registration is required, and even with the change to 
a beneficiary centric selection process, DHS believes that the bar on 
multiple H-1B cap petitions by related entities without a legitimate 
business need remains an integrity measure to guard against related 
entities filing multiple petitions without a legitimate business need 
simply to increase their chances of getting an approval and resulting 
cap number/exemption for the selected beneficiary. While unrelated 
entities would likely not be working together and would have no 
incentive to file multiple H-1B cap petitions for the same beneficiary 
without a legitimate business need, related entities would have an 
incentive to work together to file multiple H-1B cap petitions for the 
same beneficiary simply to increase their chances of getting an 
approval for that beneficiary. While the new beneficiary centric 
selection process will likely eliminate the incentive for related 
entities to game the system to increase the odds of selection at the 
registration stage, DHS does not believe that the beneficiary centric 
selection process will eliminate or significantly impact the incentives 
to game the system to increase the odds of approval at the petition 
stage that currently exist and are mitigated by the existing 
regulation. Thus, DHS disagrees with the commenters that the 
beneficiary centric selection process will render the bar on multiple 
petitions by related entities at current 8 CFR 214.2(h)(2)(i)(G) 
unnecessary.
    DHS acknowledges that the existing ``related entities'' and 
``legitimate business need'' standards place some evidentiary burden on 
petitioners. However, removing those limitations would essentially 
allow all petitioners to file multiple H-1B cap petitions for the same 
beneficiary without any restrictions. DHS believes the existing burdens 
to petitioners are outweighed by the increased risk of gaming that 
removing all restrictions on multiple H-1B cap petitions by related 
entities, absent a legitimate business need, would pose.
    Comment: A commenter stated that DHS should eliminate the portion 
of proposed 8 CFR 214.2(h)(2)(i)(G) which discusses ``related 
entities'' because, in part, the terms ``related entities'' and 
``legitimate business need'' used in the provision are ambiguous, 
unworkable, and likely to contribute unnecessarily to agency backlogs.
    Response: The existing prohibition on related entities filing 
multiple petitions for the same beneficiary at 8 CFR 214.2(h)(2)(i)(G) 
remains. DHS is not making any changes to existing 8 CFR 
214.2(h)(2)(i)(G), noting that the terms ``related entities'' and 
``legitimate business need'' in the provision are not new terms and 
that USCIS issued policy guidance on these terms in Matter of S- Inc., 
Adopted Decision 2018-02 (AAO Mar. 23, 2018).
2. Registrations With False Information or That Are Otherwise Invalid
    Comment: A couple of commenters expressed support for codifying the 
ability for USCIS to deny H-1B petitions or revoke approved petitions 
on the basis that it includes a false attestation. The commenters said 
this change showed the importance of accuracy and honesty in the 
registration system and would make the system more resilient and 
dependable in resisting fraudulent activity.
    Response: DHS agrees with the commenters that codifying the ability 
for USCIS to deny or revoke H-1B petitions that provide untrue, 
incorrect, inaccurate, or fraudulent statements of fact, or 
misrepresent material facts, including providing false attestations on 
the registration, will improve the integrity of the registration 
system.
    Comment: A few commenters expressed concern with extending 
regulations on denials and revocation of H-1B petitions for statements 
on petitions that are ``inaccurate, fraudulent, or misrepresented a 
material fact'' to information provided in the

[[Page 7470]]

registration, particularly with respect to typographical errors. For 
instance, a commenter expressed concern with USCIS expanding the 
regulations at proposed 8 CFR 214.2(h)(10)(ii), (h)(11)(iii)(A)(2), 
stating that this expansion would allow ``automatically denying or 
revoking H-1B petitions due to inaccurate information contained on a 
registration'' and would not allow a petitioner an opportunity to 
correct an unintentional typographical error. The commenter recommended 
changes to the regulatory text at 8 CFR 214.2(h)(8)(iii)(D)(1) to 
codify that USCIS may excuse typographical errors on a registration in 
its discretion when ``the H-1B petition [is] supported by relevant 
identity documents and where [the] petitioner satisfies USCIS that the 
inaccuracy was unintentional and did not create any advantage in the 
lottery selection.'' A few commenters stated that the final rule should 
permit some ability to correct typographical, non-substantive errors, 
with one commenter requesting DHS amend the regulatory text to 
specifically state that USCIS may excuse typographical errors on a 
registration in its discretion. One of these commenters also requested 
that DHS allow officer discretion regarding permissible changes to 
identifying information rather than an exhaustive list of scenarios in 
which the change will be acceptable. Another commenter stated that 
automatically denying or revoking H-1B petitions solely due to 
typographical errors in the registration is inconsistent with current 
USCIS policy. Another commenter stated that the regulatory provision 
does not clearly indicate how USCIS will review and accept petitions 
that have explainable discrepancies and said that the regulations 
should explicitly state that USCIS will issue a receipt for a petition 
with discrepancies, which would provide the petitioner with an 
opportunity to address and explain any disparities.
    Response: DHS first notes that USCIS does not, and would not, 
automatically revoke a petition under 8 CFR 214.2(h)(11)(iii), as that 
paragraph pertains to revocation on notice. See 8 CFR 214.2(h)(11)(iii) 
(``Revocation on notice''). Thus, the proposed provision at 8 CFR 
214.2(h)(11)(iii)(A)(2), as finalized by this rule, clearly provides 
for revocation upon notice. Regarding denials, the addition of the 
beneficiary centric selection process to the regulation at 8 CFR 
214.2(h)(10)(ii) will not change the operation of that regulation or 
USCIS policy that generally provides for notice and an opportunity to 
respond prior to the denial of a petition.
    DHS will not adopt the suggestions to expressly codify that a 
``typographical error'' may be a permissible change in identifying 
information in some circumstances at 8 CFR 214.2(h)(8)(iii)(D)(1), nor 
will it adopt any of the other related changes suggested by the 
commenters. DHS believes these changes are unnecessary. USCIS has not 
changed its position that it will not automatically reject the Form I-
129 petition for typographical errors on the selected registration in 
comparison with the Form I-129.\16\ The burden remains on the 
registrant/petitioner to confirm that all registration and petition 
information is correct and to establish that the H-1B cap petition is 
based on a valid registration submitted for the beneficiary named in 
the petition and selected by USCIS.\17\ Also, USCIS adjudicators 
already have the ability to exercise discretion after allowing the 
petitioner to explain a mismatch in identifying information. The NPRM 
made clear that ``USCIS would typically afford the petitioner the 
opportunity to respond when identifying information provided on the 
registration does not match the information provided on the petition, 
and petitioners would need to be prepared to explain and document the 
reason for any change in identifying information. In its discretion, 
USCIS could find that a change in identifying information is 
permissible.'' 88 FR 72870, 72898 (Oct. 23, 2023). The phrase ``could 
include, but would not be limited to'' in new 8 CFR 
214.2(h)(8)(iii)(D)(1) already makes clear that the listed 
circumstances are examples, not an exhaustive list.
---------------------------------------------------------------------------

    \16\ USCIS, ``H-1B Electronic Registration Process,'' https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-electronic-registration-process (last updated July 31, 2023).
    \17\ Id.
---------------------------------------------------------------------------

    Additionally, when entering submissions in the registration tool, 
registrants and their representatives are given the opportunity to 
review the data entered before submitting, giving them ample time to 
double-check what is entered. Furthermore, registrants and their 
representatives have until the close of the registration period to 
correct any errors they may have made on a registration. As stated in 
the final registration rule, ``USCIS will allow petitioners to edit a 
registration up until the petitioner submits the registration. A 
petitioner may delete a registration and resubmit it prior to the close 
of the registration period.'' 84 FR 888, 900 (Jan. 31, 2019). Thus, DHS 
believes registrants already have sufficient opportunities to identify 
and correct typographical errors.
    Finally, codifying language in the regulation about typographical 
errors in a registration may invite false claims of ``typographical 
error,'' in an attempt to game the beneficiary centric registration 
process by trying to make one beneficiary appear as two different 
beneficiaries. DHS, therefore, will not adopt the commenter's 
suggestion because codifying an exception for typographical errors 
could undermine the other changes being made in this final rule to 
limit the potential for abuse and gaming of the registration system and 
better ensure that each beneficiary has the same chance for selection.
    Comment: A commenter suggested DHS ``expressly add an intent 
requirement, or otherwise clarify the need for intentionality, before 
revocation is considered,'' because there can be ``several innocent 
reasons why a registration may be technically inaccurate.''
    Response: DHS does not believe it is necessary to introduce a 
requirement of intent to this provision. DHS believes registrants 
already have sufficient opportunity to address inaccuracies in 
information submitted in the registration process. As stated above, new 
8 CFR 214.2(h)(11)(iii)(A)(2) provides for revocation upon notice and 
the addition of registration to the regulation at 8 CFR 
214.2(h)(10)(ii) does not change the operation of that regulation or 
USCIS policy that generally provides for notice and an opportunity to 
respond prior to the denial of a petition. USCIS adjudicators already 
have the ability to exercise discretion after allowing the petitioner 
to explain a mismatch in identifying information.
    Further, introducing a requirement of intent may needlessly 
complicate and delay adjudication. DHS believes that the regulatory 
framework, as proposed and finalized by this rule, sufficiently affords 
the ability to explain inaccuracies in the registration process.
    Comment: While discussing proposed 8 CFR 214.2(h)(8)(iii)(D)(2), a 
joint submission from a professional association and an advocacy group 
suggested that the proposed section be either removed or amended, 
reasoning there was potential for ``significant issues'' with the 
payment mechanism during the registration process. Referencing issues 
associated with the Department of Treasury's ``Pay.gov'' site, the 
commenters expressed concern that H-1B registrations could be rejected 
in situations where payment issues resulted from system issues, rather 
than

[[Page 7471]]

user error. The commenters urged USCIS to ``make every reasonable 
effort'' to communicate with petitioners upon a payment issue being 
discovered so that it could be resolved and proposed ``specific 
changes'' to the notification process associated with payment issues, 
including an email notification and a grace period following 
notification of a payment issue. A different commenter, while generally 
supportive of proposed 8 CFR 214.2(h)(8)(iii)(D)(2), similarly 
requested a ``notice and response process prior to denial or revocation 
of a petition'' for invalid fees in recognition that ``simple banking 
or other administrative errors could lead to unreconciled fees that do 
not reflect fraud or abuse of the system.''
    Response: DHS thanks the commenters for their feedback. However, 
DHS declines to adopt the commenters' suggestions to allow a period of 
time to cure a deficient registration payment at the time of petition 
filing, or to provide in all cases a notice and response process prior 
to denying or revoking a petition. Proper submission of the 
registration is an antecedent procedural requirement to properly file 
the petition. Allowing a petition to be filed based on a registration 
with a deficient payment could create a framework in which there is 
little incentive to properly pay for any registration until it is 
selected, and a petition based on that registration is being filed. It 
would not be feasible to investigate in all cases whether a failed 
payment was truly in error or specifically done to delay paying the 
registration fee until that registration was selected and a petition 
filed. This would undermine the current fee structure that supports the 
registration system development, supporting services and maintenance.
    Allowing a registration with a deficient payment to be cured after 
selection could lead to an avenue to abuse the registration system. 
Currently, registrations that are designated as having a failed payment 
are not included in the H-1B cap selection process. If the suggested 
regulatory language were adopted, USCIS would have to include those 
registrations with a failed payment in the selection process (in order 
to properly give registrants the suggested 10 days to cure any payment 
deficiencies). As indicated above, this could lead to opportunities to 
abuse the system by simply delaying payment for all registrations until 
after the selection process is completed and then only paying for those 
that are selected. It could also mean that those registrations that 
truly failed payment would still be included in selection. This could 
lead to the selection of more registrations that would not be followed 
by a petition filing, thus increasing the difficulty in administering 
the cap.
    It is also operationally burdensome to collect the registration fee 
at the time of petition intake or in response to a request for evidence 
(RFE) or notice of intent to deny (NOID) on that petition. Requiring 
USCIS to manually process these payments upon petition intake via check 
or credit card payment (as opposed to the automated Pay.gov payment 
system in place at the time of registration) would not be operationally 
efficient and would require USCIS to incur additional expenses, as 
USCIS incurs a cost any time it must process additional payments or 
issue additional RFEs or NOIDs.
    DHS also will not currently adopt the suggestions to modify the 
registration system itself to further notify registrants of the status 
of their payments due to current system limitations and requirements. 
The registration system will notify registrants that payment has been 
initially processed. The registration system will also show the status 
of the registration as ``Invalidated-Failed Payment'' once USCIS 
identifies that the payment has failed, and USCIS will send registrants 
an email or SMS text to log into their account and check for updates. 
Additionally, payees can proactively confirm the status of a payment by 
contacting their bank, credit card company, or payment service, and 
confirm payment generally by the next business day, if not before.\18\ 
Thus, payees already have ways to confirm payment status at the 
registration stage and proactively take steps to remedy payment issues. 
Regardless, USCIS will consider options to display additional payment 
information within the registration system in the future.
---------------------------------------------------------------------------

    \18\ Pay.gov, ``Frequently Asked Questions,'' https://www.pay.gov/WebHelp/HTML/faqs.html (payments from bank accounts will 
be charged the next business day; credit and debit card payments are 
visible within 24 hours; payments through a payment service are 
charged according to the service's schedule). (Last visited January 
9, 2024.)
---------------------------------------------------------------------------

    Comment: A couple of commenters expressed support for the proposal 
to add invalid registration as a ground for revocation, reasoning it 
showed the importance of honesty and accuracy in the registration 
process. A commenter added that the proposal would help to ensure the 
dependability and resiliency of the selection process against 
fraudulent practices. Another commenter expressed general support for 
extending the grounds of denial or revocation to expressly include 
registrations with false information or that are otherwise invalid. 
This commenter also expressed general support for the beneficiary 
centric process and the bar on multiple registrations submitted by 
related entities, reasoning that limiting the number of ``false'' 
registrations would make the registration process more manageable and 
reduce USCIS' workload.
    Response: DHS agrees with these commenters and anticipates that 
this rule will enhance the fairness and integrity in the registration 
process. As explained in the NPRM, to allow companies to provide false 
information on the registration without consequence would allow them to 
potentially take a cap number for which they are ineligible.
3. Other Comments and Alternatives to Anti-Fraud Measures Related to 
Registration
    Comment: Numerous commenters provided general comments on fraud in 
the H-1B registration system and advocated for general improvements to 
mechanisms for identifying and preventing abuse. Multiple commenters 
generally discussed the need for anti-fraud measures to address abuse 
in the registration system, stating that changes are needed to promote 
fairness and integrity of the H-1B visa program, preserve the 
reputation and transparency of the U.S. immigration system, protect 
U.S. workers, allow skilled foreign professionals to stay in the United 
States and contribute to the economy, and ensure the number of 
registrations aligns with available job openings and the needs of the 
country.
    Response: DHS remains committed to deterring and preventing abuse 
of the registration process and to ensuring only those who follow the 
law are eligible to file an H-1B cap petition. To this end, USCIS has 
already undertaken extensive fraud investigations, denied and revoked 
petitions accordingly, and continues to make law enforcement referrals 
for criminal prosecution. USCIS has also increased messaging reminding 
the public that at the time each registration is submitted, each 
prospective petitioner is required to sign an attestation, under 
penalty of perjury, that: all of the information contained in the 
registration submission is complete, true, and correct; the 
registration(s) reflects a legitimate job offer; the registrant intends 
to file a petition if selected; and the registrant has not worked with 
others to unfairly increase the chance of selection.\19\ In finalizing

[[Page 7472]]

the proposed regulatory text at 8 CFR 214.2(h)(10)(ii) and 
(11)(iii)(A)(2), DHS reiterates that submitting false or incorrect 
information on the registration, including false attestations, is 
grounds for denial or revocation of the approval of the petition.
---------------------------------------------------------------------------

    \19\ USCIS, ``H-1B Electronic Registration Process,'' https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-electronic-registration-process (last updated July 31, 2023).
---------------------------------------------------------------------------

    Additionally, in changing to the beneficiary centric registration, 
multiple frivolous registrations that may not represent legitimate bona 
fide jobs will no longer increase an individual's chances of being 
selected. As such, the beneficiary centric selection will remove the 
incentive to have multiple registrations solely to increase selection 
chances.
    Comment: Many commenters voiced concern over frivolous 
registrations and fraud in the H-1B selection process, specifically the 
use of fraudulent companies to submit registrations and registrations 
from individuals without valid job offers.
    Many of these commenters stated that the proposed changes do not go 
far enough and urged USCIS to bar certain types of entities from 
submitting registrations and/or invalidate certain types of 
registrations prior to running the lottery. These commenters stated 
that USCIS should:
     Block speculative entries from being considered in the 
selection process;
     Stop individuals from using fake job offers to register by 
closing loopholes that allow companies to submit registrations for 
individuals without valid job offers;
     Require beneficiaries working for consulting companies or 
third-party contractors to have valid client job offers;
     Implement a verification process for registrants, 
beneficiaries, documents (such as passports), and/or job offers at 
registration;
     Increase the transparency, oversight, reporting, and 
auditing of the selection process;
     Ban beneficiary-owners from submitting registrations or 
limit registrations from beneficiary-owners to only those who can 
demonstrate legitimate work; and
     Screen potential registrants for certain labor and 
employment law violations and disputes and prohibit any employer with 
recent or ongoing labor violations or disputes from participating in 
the H-1B registration process.
    Response: DHS is unable to invalidate or bar certain registrations, 
such as registrations that are deemed frivolous or submitted by certain 
types of companies, at the registration stage because that would 
require USCIS to adjudicate the underlying registration. USCIS does not 
adjudicate a registration. Further, the registration process is not the 
stage at which USCIS assesses the veracity of documents, the bona fides 
of the job offer, or other aspects of the offered position. As 
previously stated in the NPRM, submission of the registration is merely 
an antecedent procedural requirement to properly file an H-1B cap-
subject petition and is not intended to replace the petition 
adjudication process or assess the eligibility of the beneficiary for 
the offered position. 88 FR 72870, 72899 (Oct. 23, 2023). Additionally, 
as noted above, the beneficiary centric registration removes the 
incentive for a beneficiary to have multiple registrations solely to 
increase their chance of selection, which DHS anticipates will reduce 
the number of frivolous registrations.
    Comment: To reduce frivolous registrations, a few commenters 
suggested requiring additional information on the registration, such 
as: requiring companies to submit job offer letters, job descriptions, 
and documentation during registration; asking employers to provide full 
LCAs at the time of initial registration; and requiring registrants to 
document that it has a non-speculative position in a specialty 
occupation for the beneficiary as of the start date of the validity 
period requested on the registration.
    Response: Beyond requiring valid passport or travel document 
information for the beneficiary on the registration, DHS is not 
requiring additional new information on the registration at this time. 
DHS does not believe that requesting additional information about the 
beneficiary, the petitioner, or the underlying job offer or position, 
is necessary to effectively administer the registration system. Some of 
the additional information proposed by commenters (such as information 
about the job offer) is information that USCIS would require and review 
to determine eligibility in the adjudication of the H-1B petition. 
Establishing eligibility is not a requirement for submitting a 
registration. USCIS believes the change to require valid passport 
information or valid travel document information is sufficient to 
identify the beneficiary and reduce potential fraud and abuse of the 
registration system.
    Comment: Several commenters noted continuing concerns with the 
registration process and advocated for increased penalties to prevent 
further fraud and abuse, including:
     Review and investigate companies and beneficiaries who 
abused the H-1B system in previous years;
     A ban, such as for 5 or 10 years, for companies and 
beneficiaries who engage in fraudulent activities;
     A 10-year ban for beneficiaries and companies that do not 
file a petition after being selected;
     Charge fines to employers found to have flooded the 
registration process with frivolous registrations and collect 
additional fees from registrants to pass a portion of these fines and 
additional fees directly to the Department of Labor to fund their 
investigation and enforcement activities in the H-1B program;
     At the registration stage, audit all registrants with more 
than ten registrations and debar registrants found to have engaged in 
registration fraud;
     Revoke H-1B visas for those who have previously exploited 
the system; and
     Implementing consequences for companies that abuse the 
registration process and impose stricter penalties for those found 
guilty of abuse.
    Response: DHS has undertaken efforts to deter abuse of the 
registration system and to ensure that those who abuse the registration 
system are not eligible for H-1B cap petition approval. As noted 
previously, in finalizing the proposed regulatory text at 8 CFR 
214.2(h)(10)(ii) and (11)(iii)(A)(2), DHS reiterates that submitting 
false or incorrect information on the registration, including false 
attestations, is grounds for denial or revocation of the approval of 
the petition. If USCIS has reason to believe that the attestations made 
during registration are not correct, it will investigate the parties in 
question, including examining evidence of collusion and patterns of 
non-filing of petitions. Where appropriate, USCIS will deny or revoke 
the approval of petitions where the attestations made at the 
registration stage are found to be false, including making findings of 
fraud or willful material misrepresentation against petitioners, if the 
facts of the case support such findings.
    Regarding the suggestions that USCIS audit companies with 10 or 
more registrations, fine or ban certain companies from participating in 
the registration process after being found to have engaged in 
registration fraud, and charge additional fees to support 
investigations and enforcement activities, DHS declines these 
suggestions. DHS does not think that companies that submit more than a 
certain number of registrations for different beneficiaries necessarily

[[Page 7473]]

warrant investigation as many companies, and in particular large 
companies, may have a legitimate need to hire multiple H-1B 
beneficiaries. Requiring USCIS to audit companies that properly submit 
more than a certain number of registrations would be an ineffective use 
of resources and would take resources away from pursuing investigations 
that are more likely to uncover fraud and abuse. In addition, the H-1B 
registration process moves quickly and USCIS does not adjudicate a 
registration at the registration stage. Further, as explained in the 
NPRM,\20\ USCIS has examined patterns in the registration process and 
has investigated companies based on evidence suggesting that they were 
attempting to game the system. However, blocking or fining employers 
from participating in the H-1B registration process goes beyond what 
DHS proposed in the NPRM. This suggested alternative would take 
significant time and agency resources and would be insufficient to 
address the issues with the current registration process that DHS 
anticipates the beneficiary centric selection process will successfully 
address. In addition, as DHS indicated in the 2019 registration final 
rule, there may be monetary fines/criminal penalties under 18 U.S.C. 
1001(a)(3) which apply generally to statements/representations made to 
the Federal Government, and registrants that engage in a pattern and 
practice of submitting registrations for which they do not file a 
petition following selection may be referred for investigation of 
potential abuse of the system.\21\ USCIS will continue to investigate 
and hold bad actors accountable to the extent of its authority, 
including making law enforcement referrals for criminal investigation.
---------------------------------------------------------------------------

    \20\ 88 FR 72870, 72889 (Oct. 23, 2023) (``DHS continues to take 
steps against potential abuse and is in the process of investigating 
potential malfeasance and possible referrals to law enforcement 
agencies.'').
    \21\ 84 FR 888, 904 (Jan. 31, 2019).
---------------------------------------------------------------------------

    Finally, with respect to the suggestion that DHS impose an 
additional registration fee to further fund investigations and 
enforcement in the H-1B program, DHS did not propose to increase the H-
1B registration fee in the H-1B NPRM, and any such proposal would need 
to be subject to public notice and comment before being finalized. As 
discussed elsewhere in this rule, DHS did propose to increase the H-1B 
registration fee in the Fee Rule NPRM.\22\ Any fee increase resulting 
from the Fee Rule NPRM proposal would be addressed in a separate final 
rule that may be issued based on that separate regulatory proposal. In 
addition, DHS may address any subsequent registration fee increase in 
future rulemaking.
---------------------------------------------------------------------------

    \22\ 88 FR 402, 500-501 (Jan. 4, 2023).
---------------------------------------------------------------------------

F. Other Comments Related to the Proposed Registration System

1. Electronic Registration vs. Paper-Based Filing
    Comment: A few commenters recommended improving the current 
registration system and/or enhancing online filing capabilities instead 
of reverting to the paper-based filing system. An individual commenter 
stated that reverting to a paper-based system increases the risk of 
human error, makes it challenging to identify unique individuals, and 
increases vulnerabilities to manipulation and bribery.
    Response: DHS does not intend to revert to a paper-based system and 
intends to conduct the electronic registration process for the FY 2025 
cap season.\23\ As noted in the NPRM, DHS considered the alternative of 
eliminating the electronic registration system and reverting to the 
paper-based filing system stakeholders used prior to implementing 
registration, but ultimately determined that the benefits of having an 
electronic registration system still outweigh the costs and any 
potential problems caused by frivolous filings. DHS proposed changes to 
the registration system to mitigate the potential for frivolous filings 
and is now finalizing those changes, with some modifications to the 
NPRM as discussed above.
---------------------------------------------------------------------------

    \23\ But note that the current regulations provide USCIS with 
the discretion to suspend the H-1B registration process, and revert 
to a paper-based selection process, in the event it determines that 
the H-1B registration process is inoperable for any reason. 8 CFR 
214.2(h)(8)(iv). DHS did not propose changes to this process, and 
this option remains available to USCIS.
---------------------------------------------------------------------------

    Comment: A commenter stated that if the new beneficiary centric 
registration process cannot be implemented in time for the FY 2025 cap 
season, ``USCIS must indeed go back to the old system of paper filings 
to preserve its credibility and the credibility of its H-1B program as 
a whole.''
    Response: DHS does not intend to revert to a paper-based system and 
intends to conduct the electronic registration process, with 
beneficiary centric selection, for the FY 2025 cap season.
2. Comments on Fees Related to Registration
    Comment: Multiple commenters discussed the current $10 registration 
fee. Several commenters stated that USCIS' decision to implement a $10 
registration fee has increased fraud in the registration system by 
incentivizing individuals to provide false employment information. 
Another commenter stated that the registration fee of $10 renders the 
limited number of available visas insufficient to meet the demand at 
that price. Several commenters suggested that USCIS increase fees or 
change fee collection to discourage fraud, for example:
     A fee increase of approximately $500 to $1,000 per 
registration;
     Implementing a requirement to pay the Fraud Prevention and 
Detection fee of $500 along with a new filing fee of $215;
     Increasing fee from ten dollars ($10) to $215, per the FY 
2022/2023 fee rule;
     Require a ``large'' deposit that is refundable; and
     Increase registration fees to allow only ``serious 
companies'' to submit registrations.
    Response: DHS did not propose to increase registration fees in the 
October 23 NPRM. Because DHS did not propose any changes to the H-1B 
registration fee in this rulemaking, these comments are outside the 
scope of this rulemaking. However, on January 4, 2023, DHS published an 
NPRM to adjust certain immigration and naturalization benefit request 
fees. 88 FR 402 (Jan. 4, 2023). In that NPRM, DHS proposed, among other 
things, to increase the H-1B registration fee from $10 to $215. The 
comment period for the proposed rule closed on March 13, 2023. DHS 
received nearly 8,000 comments in response to the NPRM, including 
comments relating to the proposed increase in the H-1B registration 
fee. Many of the comments received in response to the proposed fee rule 
relating to the proposed increase in the H-1B registration fee were 
similar to the comments submitted here. DHS will soon issue a rule to 
finalize its adjustment to immigration and naturalization benefit 
request fees, including the H-1B registration fee. Public comments on 
the increase in the H-1B registration fee can be found in the Fee rule 
NPRM rulemaking docket, and the responses to those comments will be in 
the Fee final rule.
    Comment: A few commenters said that USCIS should collect upfront 
all filing fees for the Form I-129 petition to deter fraudulent 
registrations. USCIS would then refund the petition filing fees to 
those whose registrations were not selected.
    Response: DHS declines to adopt the commenters' suggestions to 
collect petition filing fees at time of registration. Petition filing 
fees will be collected when the petition is filed,

[[Page 7474]]

consistent with current practice. DHS does not view registration as the 
same as filing a petition because the submission of the registration is 
merely an antecedent procedural requirement to properly file an H-1B 
cap-subject petition. DHS also cannot adopt the suggestions to require 
petitioners to include petition filing fees at the time of registration 
due to current system limitations and requirements. Requiring USCIS to 
refund or hold funds would not be operationally efficient and would 
require USCIS to incur additional expenses, as USCIS incurs a cost any 
time it is required to refund a fee to an applicant or petitioner. 84 
FR 888, 903-904 (Jan. 31, 2019).
3. Other Comments and Alternatives Related to Registration
    Comment: A couple of commenters generally supported the beneficiary 
centric changes to the registration process but indicated that these 
changes do not adequately address the ``increasing demand for talent in 
the U.S. economy'' or the ``ever growing need for more H-1B talent in 
the U.S.'' One of these commenters said that DHS should work with 
lawmakers to increase the annual cap. Another commenter indicated that 
the significant increase in registrations in the past few lotteries 
effectively resulted in those who did not submit multiple registrations 
being ``penalized for not engaging in fraud.'' This commenter suggested 
that, in addition to the beneficiary-based selection, USCIS should 
consider temporarily increasing the number of registrations it selects 
to help compensate those who were unfairly disadvantaged during the 
last few lotteries.
    Response: The change to a beneficiary centric selection process is 
intended to address issues related to fairness and integrity of the 
selection process, not issues related to labor demand or raising the 
statutory cap. Congress set the current annual regular H-1B cap at 
65,000 and the annual H-1B advanced degree exemption at 20,000. DHS 
does not have the statutory authority to increase--even temporarily--
these congressionally mandated caps.
    Regarding the suggestion to temporarily raise the number of 
selected registrations, USCIS already takes into account historical 
data related to approvals, denials, revocations, and other relevant 
factors when calculating the number of registrations projected as 
needed to meet the statutory numerical allocations; and, if necessary, 
USCIS may increase those numbers throughout the fiscal year. See 8 CFR 
214.2(h)(8)(iii)(E). In fact, USCIS has generally increased the total 
number of registrations it has selected for each fiscal year since the 
implementation of the registration system.\24\ Therefore, DHS declines 
to make any changes as a result of these comments but will continue to 
rely on data and all relevant information when projecting how many 
registrations to select toward the 65,000 statutory numerical 
limitation and the 20,000 advanced degree exemption.
---------------------------------------------------------------------------

    \24\ USCIS made a total selection of 124,415 in cap fiscal year 
2021, 131,924 in cap fiscal year 2022, 127,600 in cap fiscal year 
2021, and 188,400 in cap fiscal year 2024. USCIS, ``H-1B Electronic 
Registration Process,'' https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-electronic-registration-process (last updated July 31, 
2023).
---------------------------------------------------------------------------

    Comment: A few commenters offered suggestions for alternative forms 
of relief for F-1 students or other prospective beneficiaries who were 
disadvantaged in prior lotteries. Without elaborating, a commenter 
stated that the NPRM failed to address the concerns of F-1 students 
impacted by fraudulent activities in the past 3 years and that DHS 
should provide ``alternative relief options for genuine candidates 
facing uncertainties.'' Another commenter suggested that DHS should 
offer an employment authorization document ``as a form of 
compensation'' for individuals who were not selected following H-1B 
registration periods in prior years. While not specific to F-1 students 
who were disadvantaged in prior lotteries, a commenter requested DHS to 
consider extending cap-gap to all F-1 OPT or STEM OPT students 
registered in the H-1B lottery until USCIS concludes the lottery 
selection process for the fiscal year.
    Response: As previously noted, changing the registration process to 
a beneficiary centric system is intended to address issues related to 
fairness and integrity of the selection process. DHS is not attempting 
to provide relief or compensate individuals who were not selected in 
previous registration periods through this regulatory action and 
declines to adopt these suggestions.
    Comment: Multiple commenters suggested that DHS remove the random 
selection process altogether and instead suggested that the Department 
select registrations based on particular characteristics. These 
commenters suggested that the Department:
     Replace the random selection process with a merit-based 
system;
     Replace the random selection process with a ``percentage 
auction'' in which employers would bid for H-1B visas;
     Select registrations based on company needs and individual 
skills;
     Implement a points-based system in place of a random 
selection system;
     Implement a wage-level/wage or salary amount/income-based 
prioritization system, including:
    [cir] Wage-based allocation process for employers paying the 
highest wages/salaries for non-speculative jobs or having terms and 
conditions of employment set through a collective bargaining agreement;
    [cir] Select registrations based on the highest salaries;
    [cir] Change the random selection process to an income-based 
system, and remove the lower income levels from the system to prevent 
outsourcing and displacement of U.S. talent;
    [cir] Automatically select a registration for a job offer above a 
certain salary;
     Select registrations based on ``virtuous employer 
behavior'', such as hiring graduates of U.S. universities, sponsoring 
H-1B workers for permanence, or having terms and conditions of 
employment set through a collective bargaining agreement;
     Introduce degree-based categorizations in the selection 
system, reasoning that such an approach would allow more advanced 
degrees, like Ph.D.s, to have a unique category to align with the 
specialty-based nature of H-1B visas;
     Work with the Department of Labor (DOL) to identify 
industries with heavy demand for workers and give those industries 
priority;
     Provide priority status for U.S. master's students, Ph.D. 
graduates, and beneficiaries with greater than 10 years of work 
experience;
     Prioritize registrations based on the duration of the 
beneficiary's work experience or active full-time employment;
     Increase the chances of selection for individuals residing 
in the United States relative to those who are outside the country, 
individuals residing in the United States legally, international 
students, or U.S. graduates in the United States; and
     Revise the registration system so that it rewards highly 
motivated individuals who will make ``genuine contributions'' and 
contribute to the U.S. economy.
    Response: In the NPRM, DHS did not propose to prioritize or give 
preference to any registration based on skills, salaries/wages, 
education, experience, industry, or any other new criteria. Rather, the 
goal of this rule is to provide each unique beneficiary with an equal 
chance of selection. Selecting based on specific characteristics would 
not

[[Page 7475]]

achieve this goal. DHS declines to implement any of these suggestions.
    Comment: A commenter claimed that ``the names of people who are not 
selected seems to be clustered,'' the random selection process can be 
biased and can ``screen out people,'' and that ``numbers generated by 
computers are skewed and prefer specific numbers.''
    Response: DHS disagrees with this comment. If USCIS determines it 
has received enough electronic registrations at the close of the 
initial registration period to reach the applicable numerical 
allocation(s), USCIS will randomly select from among the registrations 
properly submitted during the initial registration period the number of 
registrations deemed necessary to meet the applicable allocation. As 
the selection is done via a random selection algorithm, there is no 
bias or preference for certain registrants over others. The commenter 
did not provide evidence or cite to data to support their claim that 
the selection algorithm is biased. As noted above, DHS anticipates that 
the changes made with this rulemaking will reduce the potential for 
gaming the registration process and help ensure that each beneficiary 
has the same chance of being selected.
    Comment: A few commenters suggested a ``cap,'' ``quota,'' or other 
restrictions on registrations for beneficiaries from certain countries, 
remarking that the current registration system has seen 
disproportionate representation from nationals of certain countries. A 
commenter remarked that the proposed changes would allow for fairer 
opportunities for beneficiaries of various nationalities, rather than 
beneficiaries from certain countries--the commenter cited USCIS H-1B 
petition data from 2019 indicating that 74.5 percent of H-1B petition 
beneficiaries were from India.\25\
---------------------------------------------------------------------------

    \25\ See USCIS, ``H -1B Petitions by Gender and Country of Birth 
Fiscal Year; 2019,'' https://www.uscis.gov/sites/default/files/document/data/h-1b-petitions-by-gender-country-of-birth-fy2019.pdf 
(Jan. 21, 2020).
---------------------------------------------------------------------------

    Response: DHS declines to adopt a cap, quota, or other restriction 
on registrations based on a beneficiary's nationality. DHS disagrees 
with the assertion that a beneficiary's nationality has any relevance 
to their chance of selection under the registration-based selection 
process or the beneficiary centric selection process.
    Comment: A commenter requested DHS to allow cap-exempt H-1B holders 
to transition to cap-subject employers without participating in the 
registration selection process, stating that the current system imposes 
burdens on both the employee and the prospective employer but also 
opens the door to potential H-1B program abuses and fraudulent 
activities, especially by unscrupulous companies that exploit the 
system through multiple filings and manipulative practices.
    Response: DHS declines to adopt this suggestion. The NPRM did not 
propose to address the issue of cap-exempt H-1B workers transitioning 
to cap-subject employers. Allowing a cap-exempt H-1B worker to transfer 
to a cap-subject employer without participating in the registration 
selection process would violate 8 CFR 214.2(h)(8)(iii)(F)(5) which the 
NPRM did not propose to change, as well as INA sec. 214(g)(6), 8 U.S.C. 
1184(g)(6).
    Comment: A commenter requested DHS to allow a beneficiary to view 
the case status of an H-1B registration filed by their employer, 
stating that this will allow a beneficiary to verify the information 
provided about them by a prospective employer. Another commenter 
suggested that registrations should be submitted by the beneficiaries 
rather than the employers, so that the beneficiaries can review the 
information first-hand, or alternatively that the beneficiaries co-file 
with the employer. Conversely, another commenter indicated that they 
appreciate that USCIS did not change the system to allow beneficiaries 
to submit their own registrations, noting that it could result in many 
offshore beneficiaries submitting registrations in hopes of obtaining a 
job offer after selection.
    Response: DHS agrees with the commenter who supported DHS not 
changing who can submit a registration to include beneficiaries. DHS 
will not implement a change to allow beneficiaries to submit H-1B 
registrations. The registration process will continue to be employer-
based to align with the petition process. In addition, while DHS 
incorporated a call for preliminary feedback on the beneficiary 
notification concept, including the ability to access case status 
information, DHS is not yet in the position to implement the 
commenter's suggestions. However, these suggestions will be considered 
for future action.
    Comment: A commenter encouraged DHS to work with the U.S. 
Department of the Treasury to increase the Pay.gov daily credit card 
transaction limit, stating that the current relatively low limit 
creates considerable challenges for companies submitting a large volume 
of registrations, and eliminating or significantly increasing the 
transaction limit would contribute to the NPRM goals of modernizing the 
program.
    Response: Transaction limits in Pay.gov are established by the U.S. 
Department of the Treasury (``Treasury) and are outside DHS's 
regulatory authority. Therefore, DHS did not propose to amend these 
limits in the NPRM and will not make any changes in that regard in this 
final rule. However, in past years, USCIS actively worked with Treasury 
outside of this rulemaking to waive/increase transaction limits 
affecting the H-1B registration process and now intends to request an 
exemption under recently issued Treasury guidance so that it may 
process credit card transactions in excess of the current daily and 
monthly credit card transaction limits. USCIS is moving forward with 
requesting approval from Treasury to increase the transaction limits 
from $24,999 to $39,999, and every effort will be made to obtain 
approval for the increase in time for the initial registration period 
in March of 2024.
    Comment: A commenter recommended changes to the myUSCIS portal so 
that when it sends the petitioner or an attorney a notification after 
one or more selections occur, the notification will identify the 
specific individuals who were selected.
    Response: DHS understands that the commenter is asking USCIS to 
enhance automatic account update alerts to explicitly state what has 
changed in the online account, such as the specific registrant(s) and/
or beneficiary(ies) impacted, when a selection has been made. The 
intent of these alerts is to prompt each online account holder to log 
into their account to see the details of the case update and obtain 
specific information on the pending case. Because each matter is case 
specific, the details in the issued agency notices is important and 
carefully crafted to present actionable information as well as protect 
personally identifiable information. For H-1B registrations, the 
selection notices posted to the online account present the names of the 
selected beneficiary and of the prospective petitioner, dates of 
births, contact information, and tax identification numbers. In 
contrast, the automated messages sent to account holders' email or by 
SMS text, as selected by the account holder, are intentionally kept 
general to protect privacy and prevent any inadvertent disclosure of 
personal information. DHS, therefore, declines to adopt the commenter's 
suggestion.
    Comment: As a way to improve accountability and program integrity, 
a commenter recommended DHS provide public disclosure of ``employer and 
recruiter information at the initial registration stage'' and create 
``an active mechanism for public objection and

[[Page 7476]]

comment that will be taken into consideration by those ultimately 
certifying H-1B petitions.'' Another commenter stated DHS should 
disclose to the public the names of the companies and information about 
their use or misuse of the visa program.
    Response: DHS will not implement these suggestions at this time. As 
stated above, submission of the registration is merely an antecedent 
procedural requirement to properly file an H-1B cap-subject petition 
and is not intended to replace the petition adjudication process or 
assess the eligibility of the beneficiary for the offered position. 
Therefore, because registration submission and selection is not an 
adjudication, USCIS would not have a mechanism or need to consider 
public objection and comment in the context of registration selection. 
The goal of this rule is to provide each unique beneficiary with an 
equal chance of selection. It is not clear from the comment how 
creating a system of public disclosure and mechanisms for public 
objection to registrations would help to achieve this goal. Finally, 
with respect to the suggestion that DHS disclose to the public the 
names of the companies and information about how they are using the 
program, it is not clear from the comment whether this suggestion is 
limited to the H-1B registration process or the H-1B program more 
broadly. It is also not clear what the commenter meant by ``how 
companies are using the visa program.'' DHS notes that it already has 
an H-1B Data Hub \26\ where members of the public can search H-1B 
program information, including employer names, NAICS codes, and 
geographic information to better understand how the H-1B program is 
being used, and that third parties may already report alleged fraud or 
abuse in the H-1B program through an online tip form.\27\ As such, DHS 
will not adopt the suggestions at this time.
---------------------------------------------------------------------------

    \26\ See USCIS, ``H-1B Employer Data Hub,'' https://www.uscis.gov/tools/reports-and-studies/h-1b-employer-data-hub (last 
visited Jan. 2, 2024).
    \27\ See USCIS, ``Combatting Fraud and Abuse in the H-1B Visa 
Program,'' https://www.uscis.gov/scams-fraud-and-misconduct/report-fraud/combating-fraud-and-abuse-in-the-h-1b-visa-program#H-1B%20Fraud%20and%20Abuse%20Indicators. Under the heading ``Reporting 
Suspected H-1B Fraud or Abuse,'' USCIS states: ``Anyone (including 
American workers and H-1B workers who suspect they or others may be 
the victim of H-1B fraud or abuse) can send us tips, alleged 
violations, and other relevant information about potential fraud or 
abuse using our online tip form.'' (Last visited Jan. 2, 2024.)
---------------------------------------------------------------------------

IV. Severability

    The provisions of this rule are severable from each other such that 
if a court were to hold that any provision is invalid or unenforceable 
as to a particular person or circumstance, the rule would remain in 
effect as to any other person or circumstance. Specifically, DHS 
intends that the provisions governing the beneficiary centric selection 
process in paragraph (h)(8)(iii), the elimination of the requirement 
that the requested start date for the beneficiary be the first day for 
the applicable fiscal year in (h)(8)(iii)(A)(4), and the provisions 
governing the denial or revocation of H-1B petitions based on 
inaccurate, fraudulent, or misrepresented material facts in the H-1B 
petition, H-1B registration, or LCA, or in the case of H-2A and H-2B 
petitions, the TLC, in paragraphs (h)(10)(ii) and (iii), and 
(h)(11)(iii), respectively, published in this rule to be severable from 
one another. As explained throughout this preamble, the beneficiary 
centric selection process is intended to ensure the fairness in the H-
1B selection process by evening out the odds for the selection of H-1B 
beneficiaries by significantly reducing incentives for the submission 
of multiple non-meritorious registrations for the same beneficiary. 
Further the removal of the requirement that a requested start date for 
the beneficiary be the first day of the applicable fiscal year (i.e., 
October 1st) is also a stand-alone provision that can operate 
independently of the other provisions of this rule. Codifying the 
authority for USCIS to deny or revoke petitions based on false 
statements made on the H-1B registration will further ensure that the 
H-1B selection process is based on information that is true and 
correct.\28\ While these provisions, taken together, will provide 
maximum benefit with respect to making the H-1B registration and cap 
selection process more equitable while ensuring the integrity of the H-
1B registration process and H-1B program more broadly, the beneficiary 
centric selection process provisions are not interdependent with the 
provisions providing for denial and revocation of H-1B petitions, and 
are able to operate separately. Similarly, the expansion of the denial 
provision to cover false statements on the TLC relates to the integrity 
of the H-2A and H-2B programs and is independent from and severable 
from the H-1B program, and the H-1B beneficiary centric selection 
process.
---------------------------------------------------------------------------

    \28\ As proposed, and made final in this rule, the denial 
provision in 8 CFR 214.2(h)(10)(ii) is also being expanded to cover 
false statements on the Department of Labor's TLC (applicable to H-
2A and H-2B programs), and the LCA, and the revocation provision in 
8 CFR 214.2(h)(11)(iii) is being expanded to include revocation 
based on false statements made in the LCA. As explained in the NPRM, 
this would codify DHS's current practices, as the LCA is 
incorporated into and considered part of the H-1B petition, just 
like the TLC is incorporated into and considered part of the H-2A or 
H-2B petition. See 88 FR 72870, 72903 (Oct. 23, 2023). These changes 
to 8 CFR 214.2(h)(10) and (h)(11) are independent from the other 
changes made in this final rule.
---------------------------------------------------------------------------

V. Statutory and Regulatory Requirements

A. Executive Order 12866 (Regulatory Planning and Review) and Executive 
Order 13563 (Improving Regulation and Regulatory Review)

    Executive Orders (E.O.) 12866 (Regulatory Planning and Review), as 
amended by Executive Order 14094 (Modernizing Regulatory Review), and 
13563 (Improving Regulation and Regulatory Review) direct agencies to 
assess the costs and benefits of available regulatory alternatives and, 
if a regulation is necessary, to select regulatory approaches that 
maximize net benefits (including potential economic, environmental, 
public health and safety effects, distributive impacts, and equity). 
E.O. 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility.
    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.
Summary
    The purpose of this rulemaking is to amend the regulations relating 
to the H-1B registration selection process. Through this rule, DHS is 
implementing a beneficiary centric selection process. Instead of 
selecting by registration, 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 selection 
and will be eligible to file a petition on that beneficiary's behalf

[[Page 7477]]

during the applicable petition filing period.
    For the 10-year period of analysis of the final rule DHS estimates 
the annualized net cost savings of this rulemaking will be $2,199,374 
annualized at 3 percent and 7 percent. Table 1 provides a more detailed 
summary of the final rule provisions and their impacts.

                          Table 1--Summary of Provisions and Impacts of the Final Rule
----------------------------------------------------------------------------------------------------------------
                                         Description of final       Estimated costs/      Estimated benefits of
        Final rule provisions            change to provisions   transfers of provisions         provisions
----------------------------------------------------------------------------------------------------------------
1. Start Date Flexibility for Certain    [squ] DHS is           Quantitative:            Quantitative:
 Cap-Subject H-1B Petitions.              eliminating all the   Petitioners--..........  Petitioners--
                                          text currently at 8   [squ] None.............  [squ] None.
                                          CFR                   DHS/USCIS--............  DHS/USCIS--
                                          214.2(h)(8)(iii)(A)(  [squ] None.............  [squ] None.
                                          4), which relates to
                                          a limitation on the
                                          requested start date.
                                                                Qualitative:             Qualitative:
                                                                Petitioners--..........  Petitioners--
                                                                [squ] None.............  [squ] Reduced confusion
                                                                DHS/USCIS--............   regarding which start
                                                                [squ] None.............   date they must put on
                                                                                          an H-1B petition
                                                                                         DHS/USCIS--
                                                                                         [squ] None.
2. Additional Time Burden for the H-     [squ] Due to changes   Quantitative:            Quantitative:
 1B Registration System.                  in the instructions,  Petitioners--..........  Petitioners--
                                          adding clarifying     [squ] DHS estimates      [squ] None.
                                          language regarding     that the additional     DHS/USCIS--
                                          the denial or          time to complete and    [squ] None.
                                          revocation of          submit the H-1B         Qualitative:
                                          approved H-1B          registration will cost  Petitioners--
                                          petitions, adding      $2,376,458 annually..   [squ] None.
                                          information           [squ] Although many DHS  DHS/USCIS--
                                          collection elements    rulemakings include     [squ] None.
                                          related to the         monetized or
                                          beneficiary centric    unquantified
                                          registration           familiarization costs,
                                          selection process,     DHS believes the
                                          namely the             addition of passport
                                          collection of          or travel document
                                          passport or travel     information will have
                                          document information   no likely consequence
                                          and related            or add familiarization
                                          instructional          costs to existing
                                          language, and          burdens to review
                                          verifying such         instructions, gather
                                          information before     required documentation
                                          submitting a           and complete and
                                          registration, this     submit the request..
                                          final rule will
                                          increase the burden
                                          per response by 5
                                          minutes.
                                                                DHS/USCIS--
                                                                [squ] None.............
                                                                Qualitative:...........
                                                                Petitioners--..........
                                                                [squ] None.............
                                                                DHS/USCIS--............
                                                                [squ] None.............
3. Beneficiary Centric Selection.....    [squ] Under the new    Quantitative:            Quantitative:
                                          rule, each unique     Petitioners--..........  Petitioners--
                                          individual who has a  [squ] DHS estimates the  [squ] None.
                                          registration           total annual cost       DHS/USCIS--
                                          submitted on their     savings to petitioners  [squ] None.
                                          behalf will be         will be $3,840,822 for  Qualitative:
                                          entered into the       the registrants' cost   Petitioners/
                                          selection process      of time.                 Beneficiaries--
                                          once, regardless of   [squ] DHS estimates      [squ] DHS believes that
                                          the number of          that there will be       changing how USCIS
                                          registrations          73,501 fewer             conducts the selection
                                          submitted on their     registrations due to     process to select by
                                          behalf. By selecting   this change, resulting   unique beneficiaries
                                          by a unique            in a $735,010 cost       instead of
                                          beneficiary, DHS       savings to petitioners   registrations will
                                          will better ensure     based on those           give each unique
                                          that each individual   petitioners no longer    beneficiary an equal
                                          has the same chance    needing to pay the $10   chance at selection
                                          of being selected,     registration fee..       and will reduce the
                                          regardless of how     DHS/USCIS--............   advantage that
                                          many registrations    [squ] None.............   beneficiaries with
                                          were submitted on     Qualitative:...........   multiple registrations
                                          their behalf.         Petitioners--..........   submitted on their
                                                                While the final           behalf have over
                                                                 passport or travel       beneficiaries with a
                                                                 document requirement     single registration
                                                                 could impact             submitted on their
                                                                 individuals who do not   behalf.
                                                                 yet hold a valid        [squ] Selected
                                                                 passport or travel       beneficiaries with
                                                                 document at the time     more than one
                                                                 of registration, DHS     legitimate
                                                                 has determined the       registration would
                                                                 described benefits of    enjoy improved
                                                                 program integrity        flexibility, and
                                                                 outweigh any             greater autonomy in
                                                                 additional burden to     selecting their
                                                                 prospective              employer.
                                                                 beneficiaries..
                                                                DHS/USCIS--............
                                                                [squ] None.............
                                                                                           [squ] DHS cannot
                                                                                            forecast with
                                                                                            certainty a
                                                                                            reduction in
                                                                                            administrative
                                                                                            burdens resulting
                                                                                            from fewer selection
                                                                                            rounds. However, the
                                                                                            beneficiary centric
                                                                                            selection process
                                                                                            may reduce the
                                                                                            likelihood that
                                                                                            USCIS will need to
                                                                                            run the selection
                                                                                            process more than
                                                                                            once in a fiscal
                                                                                            year and may achieve
                                                                                            the multiple
                                                                                            benefits discussed
                                                                                            by the commenters.
                                                                                            DHS also
                                                                                            acknowledges the
                                                                                            comments that
                                                                                            running multiple
                                                                                            selection rounds can
                                                                                            negatively affect
                                                                                            beneficiaries who
                                                                                            are already in the
                                                                                            United States and
                                                                                            may not be able to
                                                                                            stay through
                                                                                            multiple selection
                                                                                            rounds, and notes
                                                                                            that the beneficiary
                                                                                            centric registration
                                                                                            process may help
                                                                                            potential
                                                                                            beneficiaries in
                                                                                            this manner as well.
                                                                                         DHS/USCIS--
                                                                                         [squ] None.

[[Page 7478]]

 
4. Registrations with False              [squ] DHS is           Quantitative:            Quantitative:
 Information or that are Otherwise        codifying its         Petitioners--..........  Petitioners--
 Invalid.                                 authority to deny or  [squ] None.............  [squ] None.
                                          revoke a petition on  DHS/USCIS--............  DHS/USCIS--
                                          the basis that the    [squ] None.............  [squ] None.
                                          statement of facts    Qualitative:...........  Qualitative:
                                          on the underlying     Petitioners--..........  Petitioners--
                                          registration was not  [squ] DHS anticipates    [squ] None.
                                          true and correct, or   that USCIS              DHS/USCIS--
                                          was inaccurate,        adjudicators may issue  [squ] The authority to
                                          fraudulent, or         more RFEs and NOIDs      deny or revoke a
                                          misrepresented a       related to               petition on the basis
                                          material fact.         registrations with       that the statement of
                                       [squ] Additionally, DHS   false information        facts on the
                                        is codifying its         under this final rule,   underlying
                                        authority to deny or     which will increase      registration was not
                                        revoke the approval of   the burden on            true and correct, or
                                        an H-1B petition if it   petitioners and          was inaccurate,
                                        determines that the      adjudicators.            fraudulent, or
                                        fee associated with     [squ] USCIS may deny or   misrepresented a
                                        the registration is      revoke the approval of   material fact will
                                        declined, not            any petition filed for   lead to improved
                                        reconciled, disputed,    the beneficiary based    program integrity for
                                        or otherwise invalid     on those registrations   USCIS.
                                        after submission..       with false information
                                                                 or if USCIS determines
                                                                 fee payment is
                                                                 declined, not
                                                                 reconciled, disputed,
                                                                 or otherwise invalid
                                                                 after submission..
                                                                DHS/USCIS--                [squ] The authority
                                                                [squ] DHS will need to      to deny or revoke
                                                                 spend time issuing         due to failed or
                                                                 RFEs and NOIDs related     incomplete payment
                                                                 to registrations with      mitigates the
                                                                 false information..        incentive to submit
                                                                                            payment only upon
                                                                                            selection of
                                                                                            registrations and
                                                                                            will lead to
                                                                                            improved program
                                                                                            integrity for USCIS.
----------------------------------------------------------------------------------------------------------------

    In addition to the impacts summarized above, and as required by OMB 
Circular A-4, Table 2 presents the prepared accounting statement 
showing the costs and benefits that will result in this final rule.\29\
---------------------------------------------------------------------------

    \29\ OMB, Circular A-4 (Sept. 17, 2003), https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/circulars/A4/a-4.pdf (last viewed June 1, 2021).

                                      Table 2--OMB A-4 Accounting Statement
                                              [$ millions, FY 2022]
----------------------------------------------------------------------------------------------------------------
                                      Time period: FY 2023 through FY 2032
-----------------------------------------------------------------------------------------------------------------
            Category               Primary estimate    Minimum estimate    Maximum estimate     Source citation
----------------------------------------------------------------------------------------------------------------
                                                    Benefits
----------------------------------------------------------------------------------------------------------------
Monetized Benefits..............                              N/A                             Regulatory Impact
                                                                                               Analysis (RIA).
                                 ------------------------------------------------------------
Annualized quantified, but        N/A...............  N/A...............  N/A...............  RIA.
 unmonetized, benefits.
                                 ------------------------------------------------------------
Unquantified Benefits...........  The purpose of this rulemaking is to improve the            RIA.
                                   regulations relating to 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 selection and
                                   will be eligible to file a petition on that beneficiary's
                                   behalf during the applicable petition filing period. The
                                   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.
----------------------------------------------------------------------------------------------------------------
                                                      Costs
----------------------------------------------------------------------------------------------------------------
Annualized monetized costs (7%).                             -$2.2                            RIA.
Annualized monetized costs (3%).                             -$2.2
Annualized quantified, but                                    N/A
 unmonetized, costs.
                                 ------------------------------------------------------------
Qualitative (unquantified) costs  DHS expects program participants to comply with program     RIA.
                                   requirements, and notes those that do not comply with
                                   program requirements could experience significant impacts
                                   due to this rule. DHS expects that the final rule
                                   prevents registrations with false information from taking
                                   a cap number for which they are ineligible.
                                  If registrants provide false information to gain an unfair
                                   advantage under the beneficiary centric selection
                                   process, DHS anticipates that USCIS adjudicators may
                                   issue more RFEs and NOIDs related to registrations with
                                   false information under this final rule, which will
                                   increase the burden on petitioners and adjudicators.
                                   USCIS may deny or revoke the approval of any petition
                                   filed for the beneficiary based on those registrations
                                   with false information.
----------------------------------------------------------------------------------------------------------------
                                                    Transfers
----------------------------------------------------------------------------------------------------------------
Annualized monetized transfers                                N/A
 (7%).
Annualized monetized transfers                                N/A
 (3%).
From whom to whom?

[[Page 7479]]

 
From whom to whom?
----------------------------------------------------------------------------------------------------------------
Miscellaneous analyses/category                             Effects                           Source citation.
Effects on State, local, or                                  None                             RIA.
 tribal governments.
Effects on small businesses.....                             None                             RIA.
Effects on wages................                             None                             None.
Effects on growth...............  The beneficiary centric selection process will likely       None.
                                   increase fairness in the selection process, as well as
                                   enhance the integrity of the selection process overall.
                                   DHS anticipates that this change will also enhance
                                   transparency and predictability in the selection process
                                   by structurally limiting the potential for bad actors to
                                   game the system. As noted in the NPRM, DHS is aware that,
                                   under the registration-based selection process, an
                                   individual's chance of selection with a single
                                   registration is lower compared to beneficiaries who have
                                   multiple registrations submitted on their behalf and is
                                   optimistic that the new beneficiary centric selection
                                   system will increase fairness and help restore trust in
                                   the system.
----------------------------------------------------------------------------------------------------------------

Background
    Through this final rule, DHS is finalizing certain provisions 
relating to the beneficiary centric selection process for H-1B 
registrations, start date flexibility for certain H-1B cap-subject 
petitions, and integrity measures related to registration.
Costs, Transfers, and Benefits of the Final Rule
(1) Start Date Flexibility for Certain H-1B Cap-Subject Petitions
    DHS is eliminating all the text currently at 8 CFR 
214.2(h)(8)(iii)(A)(4), which relates to a limitation on the requested 
start date, because the current regulatory language creates confusion 
when the petition filing period extends beyond October 1 of the 
applicable fiscal year. The removal of this text will provide clarity 
and flexibility to employers with regard to the start date listed on H-
1B cap-subject petitions, consistent with existing USCIS practice. This 
clarity may help petitioners by reducing confusion as to what start 
date they have to put on the petition.
    In 2020, USCIS implemented the first electronic registration 
process for the FY 2021 H-1B cap. In that year, and for each subsequent 
fiscal year, prospective petitioners seeking to file H-1B cap-subject 
petitions (including for beneficiaries eligible for the advanced degree 
exemption) were required to first electronically register and pay the 
associated H-1B registration fee for each prospective beneficiary. 
Table 3 shows the number of cap-subject registrations received and 
selected by USCIS during Cap Year 2021 through FY 2023. Based on the 3-
year annual average DHS estimates that 127,980 registrations are 
selected each year. DHS cannot estimate the number of petitioners that 
will benefit from this clarification to the start date on their 
petition because USCIS does not currently reject or deny petitions 
solely due to the start date not being October 1 of the applicable 
fiscal year.

                                         Table 3--H-1B Cap-Subject Registrations Received and Selected by USCIS
                                                             [Cap Year 2021 through FY 2023]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                               Total number of    Eligible registrations for    Eligible registrations for
                          Cap year                              registrations     beneficiaries with no other   beneficiaries with multiple   Selections
                                                                  received          eligible registrations        eligible registrations
--------------------------------------------------------------------------------------------------------------------------------------------------------
2021.......................................................             274,237                       241,299                        28,125      124,415
2022.......................................................             308,613                       211,304                        90,143      131,924
2023.......................................................             483,927                       309,241                       165,180      127,600
                                                            --------------------------------------------------------------------------------------------
    3-Year Total...........................................           1,066,777                       761,844                       283,448      383,939
    3-Year Average.........................................             355,592                       253,948                        94,483      127,980
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-electronic-registration-process process (Mar. 30, 2023).

    In FY 2024 there were 780,884 registrations received, which was a 
large increase from previous years shown in Table 4. Of those 
registrations, 758,994 were eligible and 350,103 were eligible 
registrations for beneficiaries with no other eligible registrations, 
and 408,891 were eligible registrations for beneficiaries with multiple 
eligible registrations. Table 4 shows the 4-year annual average 
including FY 2024. The FY 2024 data shows continued growth in eligible 
registrations for beneficiaries both with no other eligible 
registrations and those with multiple registrations. While Tables 3 and 
4 suggest that growth in multiple registrations may continue in 
response to declining odds of random selection in the lottery, DHS 
cannot accurately project out what the share of future registrations 
will be for beneficiaries with multiple registrations nor how many 
registrations might ultimately be submitted for those beneficiaries. 
Furthermore, Table 3 shows that the number of eligible registrations 
for beneficiaries with no other eligible registrations has continued to 
grow for reasons unrelated to the growth in multiple registrations. 
Although past growth is not indicative of future trend, it is evident 
from the analysis presented in the NPRM and this Final Rule that should 
these trends continue, the cost savings estimated in this analysis 
would only grow larger, and consequently, DHS continues to use the 3-
year annual (FY21 through FY23) average as the appropriate estimated

[[Page 7480]]

population for this final rule. While DHS considered the FY2024 data 
separately, we are not adjusting the RIA to include FY2024 because this 
most-recent registration data lacks necessary information on the 
verified total number of unique beneficiaries with registrations 
submitted on their behalf which this RIA uses to estimate impacts of 
the beneficiary centric selection process. DHS incorporated the FY 2024 
data into this final rule once partial data became available to show 
the increase in the total number of registrations received since 
FY2023. Table 4 shows the 4-year annual average including FY 2024, this 
annual average is around 106,323 higher than the 3-year annual average 
shown in Table 3 even though the increase from FY 2023 to FY 2024 was 
an increase of 296,957.

                                         Table 4--H-1B Cap-Subject Registrations Received and Selected by USCIS
                                                          [Cap year 2021 through Cap year 2024]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                               Total number of    Eligible registrations for    Eligible registrations for
                          Cap year                              registrations     beneficiaries with no other   beneficiaries with multiple   Selections
                                                                  received          eligible registrations        eligible registrations
--------------------------------------------------------------------------------------------------------------------------------------------------------
2021.......................................................             274,237                       241,299                        28,125      124,415
2022.......................................................             308,613                       211,304                        90,143      131,924
2023.......................................................             483,927                       309,241                       165,180      127,600
2024.......................................................             780,884                       350,103                       408,891      188,400
                                                            --------------------------------------------------------------------------------------------
    Total..................................................           1,847,661                     1,111,947                       692,339      572,339
                                                            --------------------------------------------------------------------------------------------
    Average................................................             461,915                       277,987                       173,085      143,085
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-electronic-registration-process process (Mar. 30, 2023).

(2) The H-1B Registration System
    Through issuance of a final rule in 2019, Registration Requirement 
for Petitioners Seeking To File H-1B Petitions on Behalf of Cap-Subject 
Aliens,\30\ DHS developed a new way to administer the H-1B cap 
selection process to streamline processing and provide overall cost 
savings to employers seeking to file H-1B cap-subject petitions. In 
2020, USCIS implemented the first electronic registration process for 
the FY 2021 H-1B cap. In that year, and for each subsequent fiscal 
year, prospective petitioners seeking to file H-1B cap-subject 
petitions (including for beneficiaries eligible for the advanced degree 
exemption) were required to first electronically register and pay the 
associated H-1B registration fee for each prospective beneficiary. When 
registration is required, an H-1B cap-subject petition is not eligible 
for filing unless it is based on a selected registration that was 
properly submitted by the prospective petitioner, or their 
representative, for the beneficiary.
---------------------------------------------------------------------------

    \30\ See ``Registration Requirement for Petitioners Seeking To 
File H-1B Petitions on Behalf of Cap-Subject Aliens,'' 84 FR 888 
(Jan. 31, 2019).
---------------------------------------------------------------------------

    Table 3 shows the number of cap registration receipts by year, as 
well as the number of registrations that were selected to file Form I-
129 H-1B petitions. The number of registrations has increased over the 
past 3 years. DHS believes that this increase is partially due to the 
increase in multiple companies submitting registrations for the same 
beneficiary. USCIS received a low of 274,237 H-1B registrations for cap 
year 2021, and a high of 483,927 H-1B registrations for cap year 2023.
    DHS estimates the current public reporting time burden for an H-1B 
registration is 31 minutes (0.5167 hours), which includes the time for 
reviewing instructions, gathering the required information, and 
submitting the registration.
    The number of Form G-28 submissions allows USCIS to estimate the 
number of H-1B registrations that an attorney or accredited 
representative submits and thus estimate the opportunity costs of time 
for an attorney or accredited representative to submit a registration. 
Table 5 shows the number of registrations received with and without 
Form G-28. USCIS received a low of 148,964 registrations with Form G-28 
in cap year 2022, and a high of 207,053 registrations with Form G-28 in 
cap year 2023. Based on a 3-year annual average, DHS estimates the 
annual average receipts of registrations to be 171,330 with 48 percent 
of registrations submitted by an attorney or accredited representative.

                     Table 5--Total Form I-129 H-1B Registrations With and Without Form G-28
                                      [Cap year 2021 through Cap year 2023]
----------------------------------------------------------------------------------------------------------------
                                      Total number of H- Total number of H-                    Percentage of  H-
                                       1B registrations   1B registrations    Total of H-1B     1B registrations
              Cap year                submitted without    submitted with      registration      submitted with
                                          form G-28          form G-28          submitted        form G-28 (%)
 
----------------------------------------------------------------------------------------------------------------
2021................................            116,264            157,973            274,237                 58
2022................................            159,649            148,964            308,613                 48
2023................................            276,874            207,053            483,927                 43
                                     ---------------------------------------------------------------------------
    3-Year Total....................            552,787            513,990          1,066,777                 48
                                     ---------------------------------------------------------------------------

[[Page 7481]]

 
    3-Year Average..................            184,262            171,330            355,592                 48
----------------------------------------------------------------------------------------------------------------
Source: USCIS, Office of Policy and Strategy, PRD, CLAIMS3 and ELIS databases, Mar. 30, 2023.

    Of the 355,592 total average of H-1B registrations submitted, DHS 
estimates that an annual average of 282,091 unique beneficiaries with 
registrations will now see increase to the opportunity cost of time 
completing and submitting an H-1B registration. Of those 282,091 
registrations, DHS estimated that an attorney or accredited 
representative submitted 48 percent of registrations and an HR 
representative submitted the remaining 52 percent shown in Table 5.

                                   Table 6--H-1B Cap-Subject Registrations Received by USCIS for Unique Beneficiaries
                                                              [Cap year 2021 through 2023]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                            Total number of     Total number of     Total number of       % of total
                                                                             registrations       registrations          unique           registrations
                                                             Total           submitted for       submitted for    beneficiaries with     submitted for
                      Cap year                           registrations    beneficiaries with  beneficiaries with     registrations    beneficiaries with
                                                                               multiple            a single       submitted on their       a single
                                                                             registrations       registration           behalf           registration
--------------------------------------------------------------------------------------------------------------------------------------------------------
2021................................................             274,237              34,349             239,888             253,331                  87
2022................................................             308,613              98,547             210,066             235,720                  68
2023................................................             483,927             176,444             307,483             357,222                  64
                                                     ---------------------------------------------------------------------------------------------------
    3-year Total....................................           1,066,777             309,340             757,437             846,273                  71
                                                     ---------------------------------------------------------------------------------------------------
    3-year Annual Average...........................             355,592             103,113             252,479             282,091                  71
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: USCIS Office of Performance and Quality.

    In order to estimate the opportunity costs of time for completing 
and submitting an H-1B registration DHS assumes that a registrant will 
use an HR specialist, an in-house lawyer, or an outsourced lawyer to 
prepare an H-1B registration.\31\ DHS uses the mean hourly wage of 
$35.13 for HR specialists to estimate the opportunity cost of the time 
for preparing and submitting the H-1B registration.\32\ Additionally, 
DHS uses the mean hourly wage of $78.74 for in-house lawyers to 
estimate the opportunity cost of the time for preparing and submitting 
the H-1B registration.\33\
---------------------------------------------------------------------------

    \31\ USCIS limited its analysis to HR specialists, in-house 
lawyers, and outsourced lawyers to present estimated costs. However, 
USCIS understands that not all entities employ individuals with 
these occupations and, therefore, recognizes equivalent occupations 
may also prepare and file these petitions or registrations.
    \32\ See BLS, ``Occupational Employment and Wage Statistics, 
Occupational Employment and Wages, May 2022, 13-1071 Human Resources 
Specialists,'' https://www.bls.gov/oes/2022/may/oes131071.htm (last 
visited May 11, 2023).
    \33\ See BLS, ``Occupational Employment and Wage Statistics, 
Occupational Employment and Wages, May 2022, 23-1011 Lawyers,'' 
https://www.bls.gov/oes/2022/may/oes231011.htm (last visited May. 
11, 2023).
---------------------------------------------------------------------------

    DHS accounts for worker benefits when estimating the total costs of 
compensation by calculating a benefits-to-wage multiplier using the BLS 
report detailing the average employer costs for employee compensation 
for all civilian workers in major occupational groups and industries. 
DHS estimates that the benefits-to-wage multiplier is 1.45 and, 
therefore, is able to estimate the full opportunity cost per 
petitioner, including employee wages and salaries and the full cost of 
benefits such as paid leave, insurance, retirement, etc.\34\ DHS 
multiplied the average hourly U.S. wage rate for HR specialists and in-
house lawyers by 1.45 to account for the full cost of employee 
benefits, for a total of $50.94 \35\ per hour for an HR specialist and 
$114.17 \36\ per hour for an in-house lawyer. DHS recognizes that a 
firm may choose, but is not required, to outsource the preparation of 
these petitions and, therefore, presents two wage rates for lawyers. To 
determine the full opportunity costs of time if a firm hired an 
outsourced lawyer, DHS multiplied the average hourly U.S. wage rate for 
lawyers by 2.5 \37\ for a total of $196.85 \38\ to approximate an 
hourly wage rate for

[[Page 7482]]

an outsourced lawyer \39\ to prepare and submit an H-1B 
registration.\40\
---------------------------------------------------------------------------

    \34\ The benefits-to-wage multiplier is calculated as follows: 
(Total Employee Compensation per hour)/(Wages and Salaries per hour) 
($42.48 Total Employee Compensation per hour)/($29.32 Wages and 
Salaries per hour) = 1.44884 = 1.45 (rounded). See BLS, Economic 
News Release, ``Employer Costs for Employee Compensation'' (Dec. 
2022), Table 1. ``Employer Costs for Employee Compensation by 
ownership'' (Dec. 2022), https://www.bls.gov/news.release/archives/ecec_03172023.htm (last visited Mar. 21, 2023). The Employer Costs 
for Employee Compensation measures the average cost to employers for 
wages and salaries and benefits per employee hour worked.
    \35\ Calculation: $35.13 * 1.45 = $50.94 total wage rate for HR 
specialist.
    \36\ Calculation: $78.74 * 1.45 = $114.17 total wage rate for 
in-house lawyer.
    \37\ DHS Immigration and Customs Enforcement (ICE), ``Safe-
Harbor Procedures for Employers Who Receive a No-Match Letter,'' 
used a multiplier of 2.5 to convert in-house attorney wages to the 
cost of outsourced attorney based on information received in public 
comment to that rule. We believe the explanation and methodology 
used in the Final Small Entity Impact Analysis for that rule remains 
sound for using 2.5 as a multiplier for outsourced labor wages in 
this final rule, see https://www.regulations.gov/document/ICEB-2006-0004-0922, at page G-4.
    \38\ Calculation: $78.74 * 2.5 = $196.85 total wage rate for an 
outsourced lawyer.
    \39\ The DHS analysis in ``Exercise of Time-Limited Authority To 
Increase the Fiscal Year 2018 Numerical Limitation for the H-2B 
Temporary Nonagricultural Worker Program,'' 83 FR 24905 (May 31, 
2018), https://www.federalregister.gov/documents/2018/05/31/2018-11732/exercise-of-time-limited-authority-to-increase-the-fiscal-year-2018-numerical-limitation-for-the, used a multiplier of 2.5 to 
convert in-house attorney wages to the cost of outsourced attorney 
wages. The ICE rule ``Final Small Entity Impact Analysis: `Safe-
Harbor Procedures for Employers Who Receive a No-Match Letter' '' at 
G-4 (Aug. 25, 2008), https://www.regulations.gov/document/ICEB-2006-0004-0922, also uses a multiplier. The methodology used in the Final 
Small Entity Impact Analysis remains sound for using 2.5 as a 
multiplier for outsourced labor wages in this final rule.
    \40\ The DHS analysis in ``Exercise of Time-Limited Authority To 
Increase the Fiscal Year 2018 Numerical Limitation for the H-2B 
Temporary Nonagricultural Worker Program,'' 83 FR 24905 (May 31, 
2018), https://www.federalregister.gov/documents/2018/05/31/2018-11732/exercise-of-time-limited-authority-to-increase-the-fiscal-year-2018-numerical-limitation-for-the, used a multiplier of 2.5 to 
convert in-house attorney wages to the cost of outsourced attorney 
wages. Also, the analysis for a DHS ICE rule, ``Final Small Entity 
Impact Analysis: `Safe-Harbor Procedures for Employers Who Receive a 
No-Match Letter' '' at G-4 (Aug. 25, 2008), https://www.regulations.gov/document/ICEB-2006-0004-0922, used a multiplier. 
The methodology used in the Final Small Entity Impact Analysis 
remains sound for using 2.5 as a multiplier for outsourced labor 
wages in this final rule.
---------------------------------------------------------------------------

    Table 7 displays the estimated annual opportunity cost of time for 
submitting an H-1B registration employing an in-house or outsourced 
lawyer to complete and submit an H-1B registration. DHS does not know 
the exact number of registrants who will choose an in-house or an 
outsourced lawyer but assumes it may be a 50/50 split and therefore 
provides an average. These current opportunity costs of time for 
submitting an H-1B registration using an attorney or other 
representative are estimated to range from $7,987,704 to $13,772,265 
with an average of $10,879,985.

Table 7--Current Average Opportunity Costs of Time for Submitting an H-1B Registration With an Attorney or Other
                                                 Representative
----------------------------------------------------------------------------------------------------------------
                                                           Time burden to
                                          Population       complete H-1B                         Total current
                                       submitting  with     registration       Cost of time    opportunity  cost
                                           a lawyer           (hours)
                                                      A                  B                  C    D = (A x B x C)
----------------------------------------------------------------------------------------------------------------
In-house lawyer.....................            135,404             0.5167            $114.17         $7,987,704
Outsourced lawyer...................            135,404             0.5167             196.85         13,772,265
                                     ---------------------------------------------------------------------------
    Average.........................  .................  .................  .................         10,879,985
----------------------------------------------------------------------------------------------------------------
Source: USCIS Analysis.

    To estimate the current remaining opportunity cost of time for an 
HR specialist submitting an H-1B registration without a lawyer, DHS 
applies the estimated public reporting time burden (0.5167 hours) to 
the compensation rate of an HR specialist. Table 8 estimates the 
current total annual opportunity cost of time to HR specialists 
completing and submitting an H-1B registration will be approximately 
$3,860,904.

 Table 8--Current Average Opportunity Costs of Time for Submitting an H-1B Registration, Without an Attorney or
                                            Accredited Representative
----------------------------------------------------------------------------------------------------------------
                                                           Time burden to
                                                           complete H-1B     HR specialist's   Total opportunity
                                          Population        registration     opportunity cost     cost of time
                                                              (hours)            of time
                                                      A                  B                  C    D = (A x B x C)
----------------------------------------------------------------------------------------------------------------
Estimate of H-1B Registrations......            146,687             0.5167             $50.94         $3,860,904
----------------------------------------------------------------------------------------------------------------
Source: USCIS Analysis.

    Table 9 shows the final estimated time burden will increase by 5 
minutes to 36 minutes (0.6 hours) to the eligible population and 
compensation rates of those who may submit registrations with or 
without a lawyer due to changes in the instructions, adding clarifying 
language regarding denying or revoking approved H-1B petitions, adding 
passport or travel document instructional language, and verifying such 
information before submitting registrations. DHS does not know the 
exact number of registrants who will choose an in-house or an 
outsourced lawyer but assumes it may be a 50/50 split and therefore 
provides an average. DHS estimates that these current opportunity costs 
of time for submitting an H-1B registration using an attorney or other 
representative range from $9,275,445 to $15,992,566 with an average of 
$12,634,006.

[[Page 7483]]



   Table 9--New Opportunity Costs of Time for an H-1B Registration, Registrants Submitting With an Attorney or
                                              Other Representative
----------------------------------------------------------------------------------------------------------------
                                        Population of      Time burden to
                                         registrants       complete H-1B                       Total opportunity
                                       submitting  with     registration       Cost of time           cost
                                           a lawyer           (hours)
                                                      A                  B                  C    D = (A x B x C)
----------------------------------------------------------------------------------------------------------------
In House Lawyer.....................            135,404                0.6            $114.17         $9,275,445
Outsourced Lawyer...................            135,404                0.6            $196.85         15,992,566
                                     ---------------------------------------------------------------------------
    Average.........................  .................  .................  .................         12,634,006
----------------------------------------------------------------------------------------------------------------
Source: USCIS Analysis.

    To estimate the current remaining opportunity cost of time for an 
HR specialist submitting an H-1B registration without a lawyer, DHS 
applies the final estimated public reporting time burden (0.6 hours) to 
the compensation rate of an HR specialist. Table 10 estimates the 
current total annual opportunity cost of time to HR specialists 
completing and submitting the H-1B registration will be approximately 
$4,483,341.

  Table 10--Final Average Opportunity Costs of Time for an H-1B Registration, Submitting Without an Attorney or
                                            Accredited Representative
----------------------------------------------------------------------------------------------------------------
                                                           Time burden to    HR specialist's
                                                           complete H-1B     opportunity cost  Total opportunity
                                          Population        registration     of time (48.40/      cost of time
                                                              (hours)              hr.)
                                                      A                  B                  C    D = (A x B x C)
----------------------------------------------------------------------------------------------------------------
Estimate H-1B Registration..........            146,687                0.6             $50.94         $4,483,341
----------------------------------------------------------------------------------------------------------------
Source: USCIS Analysis.

    DHS estimates the total additional annual cost for attorneys and HR 
specialists to complete and submit H-1B registrations are expected to 
be $2,376,458 shown in Table 11. This table shows the current total 
opportunity cost of time to submit an H-1B registration and the final 
total opportunity cost of time.

         Table 11--Total Costs To Complete the H-1B Registration
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Average Current Opportunity Cost Time for Lawyers to         $10,879,985
 Complete the H-1B Registration.........................
Average Current Opportunity Cost Time for HR Specialist        3,860,904
 to Complete the H-1B Registration......................
                                                         ---------------
    Total...............................................      14,740,889
Average Final Opportunity Cost Time for Lawyers to            12,634,006
 Complete the H-1B Registration.........................
Average Final Opportunity Cost Time for HR Specialist to       4,483,341
 Complete the H-1B Registration.........................
                                                         ---------------
    Total...............................................      17,117,347
    Final Additional Opportunity Costs of Time to              2,376,458
     Complete the H-1B Registration.....................
------------------------------------------------------------------------
Source: USCIS Analysis.


[[Page 7484]]

(3) Beneficiary Centric Selection
    Under the final provision, DHS will modify the random selection 
process. Registrants will continue to submit registrations on behalf of 
beneficiaries, and beneficiaries will continue to be able to have more 
than one registration submitted on their behalf, as generally allowed 
by applicable regulations. If a random selection were necessary 
(meaning, more registrations are submitted than the number of 
registrations USCIS projected as needed to reach the numerical 
allocations), then the random selection will be based on each unique 
beneficiary identified in the registration pool, rather than each 
registration. If a beneficiary is selected, then all registrants who 
properly submitted a registration for that selected beneficiary will be 
notified of the selection and that they are eligible to file an H-1B 
cap petition on behalf of the beneficiary during the applicable 
petition filing period.
    DHS believes that changing how USCIS conducts the selection process 
to select by unique beneficiaries instead of registrations will give 
each unique beneficiary an equal chance at selection and will reduce 
the advantage that beneficiaries with multiple registrations submitted 
on their behalf have over beneficiaries with a single registration 
submitted on their behalf. DHS believes that it will also reduce the 
incentive that registrants may have to work with others to submit 
registrations for the same beneficiary to unfairly increase the chance 
of selection for the beneficiary because doing so under the beneficiary 
centric selection approach will not result in an increase in the odds 
of selection. Selecting by unique beneficiary could also result in 
other benefits, such as giving beneficiaries greater autonomy regarding 
their H-1B employment. Under the baseline, employers attest that the 
registration reflects a legitimate job offer and they did not work with 
others to improve their chance of selection, and some beneficiaries 
have multiple legitimate registrations. Some beneficiaries who 
registered multiple times may see their relative odds of at least one 
lottery selection decline as a result of this rule, but this effect 
will be offset by the increased autonomy for beneficiaries. Under the 
current registration based selection process, beneficiaries with 
multiple registrations have their offer of employment determined by 
which registrant (prospective employer) was selected. After this final 
rule is in effect, selecting by unique beneficiary and providing each 
registrant with a selection notice will allow beneficiaries to select 
from among the registrants with legitimate job offers thus potentially 
giving beneficiaries greater autonomy regarding their H-1B employment; 
these beneficiaries may also have greater bargaining power or 
flexibility to negotiate with prospective employers.
    The integrity of the new selection process will rely on USCIS's 
ability to accurately identify each individual beneficiary, and all 
registrations submitted on their behalf. DHS is requiring the 
submission of valid passport information or valid travel document 
information, including the passport or travel document number, country 
of issuance, and expiration date, in addition to the currently required 
information. See new 8 CFR 214.2(h)(8)(iii)(A)(4)(ii). While the final 
passport or travel document requirement could impact individuals who do 
not yet hold valid passports or travel documents at the time of 
registration, DHS has determined the described benefits of program 
integrity outweigh any additional burden to prospective beneficiaries.
    DHS estimates that the annual average receipts of H-1B 
registrations is 355,592 with 71 percent of registrations being 
submitted for a beneficiary with only a single registration. DHS 
estimates that 29 percent \41\ of registrations are submitted by 
companies for beneficiaries who have also had other registrations 
submitted on their behalf. Based on this new provision, DHS estimates 
that there may be a reduction in registrations because beneficiaries 
will be less inclined to find as many different employers to submit 
registrations on their behalf as doing so will not affect their chance 
of selection. Also, DHS expects to see less abuse by unscrupulous 
registrants as they will not be able to increase the chance of 
selection for a beneficiary by working together with others to submit 
multiple registrations for the same beneficiary.
---------------------------------------------------------------------------

    \41\ Calculation: 100%-71% Registrations for a single 
beneficiary = 29% Registrations submitted for multiple 
beneficiaries.

                                   Table 12--H-1B Cap-Subject Registrations Received by USCIS for Unique Beneficiaries
                                                              [Cap Year 2021 Through 2023]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                          Total number of     Total number of                             % of total
                                                                           registrations       registrations       Total number of       registrations
                                                            Total          submitted for       submitted for    unique beneficiaries     submitted for
                       Cap year                         registrations      beneficiaries       beneficiaries      with registrations     beneficiaries
                                                                           with multiple       with a single     submitted on  their     with a single
                                                                           registrations       registration            behalf          registration  (%)
--------------------------------------------------------------------------------------------------------------------------------------------------------
2021.................................................          274,237              34,349             239,888               253,331                  87
2022.................................................          308,613              98,547             210,066               235,720                  68
2023.................................................          483,927             176,444             307,483               357,222                  64
                                                      --------------------------------------------------------------------------------------------------
    3-year Total.....................................        1,066,777             309,340             757,437               846,273                  71
    3-year Annual Average............................          355,592             103,113             252,479               282,091                  71
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: USCIS Office of Performance and Quality.

    DHS estimates that 73,501 \42\ registrations annually may no longer 
be submitted due to this final rule change. Of those 73,501 
registrations, DHS estimated that an attorney or accredited 
representative submitted 48 percent of registrations and an HR 
representative submitted the remaining 52 percent shown in Table 5.
---------------------------------------------------------------------------

    \42\ Calculation: Total Registrations 355,592-Total average 
number of unique beneficiaries with registrations submitted on their 
behalf 282,091 = 73,501 Estimate of registrations that may no longer 
be submitted.
---------------------------------------------------------------------------

    Table 13 displays the estimated annual opportunity cost of time for 
submitting an H-1B registration employing an in-house or outsourced 
lawyer to complete and submit an H-1B

[[Page 7485]]

registration. DHS does not know the exact number of prospective 
petitioners who will choose an in-house or an outsourced lawyer but 
assumes it may be a 50/50 split and therefore provides an average. DHS 
estimates that these current opportunity costs of time for submitting 
an H-1B registration using an attorney or other representative range 
from $2,081,225 to $3,588,413, with an average of $2,834,819.

Table 13--Current Annual Average Opportunity Costs of Time for Submitting an H-1B Registration, With an Attorney
                                             or Other Representative
----------------------------------------------------------------------------------------------------------------
                                            Population of     Time burden to
                                             registrants       complete H-1B                     Total  current
                                           submitting with     registration     Cost of time   opportunity  cost
                                               a lawyer           (hours)
                                                          A                 B               C    D = (A x B x C)
----------------------------------------------------------------------------------------------------------------
In House Lawyer.........................             35,280            0.5167         $114.17         $2,081,225
Outsourced Lawyer.......................             35,280            0.5167          196.85          3,588,413
                                         -----------------------------------------------------------------------
    Average.............................  .................  ................  ..............          2,834,819
----------------------------------------------------------------------------------------------------------------
Source: USCIS Analysis.

    To estimate the current remaining opportunity cost of time for an 
HR specialist submitting an H-1B registration without a lawyer, DHS 
applies the estimated public reporting time burden (0.5167 hours) to 
the compensation rate of an HR specialist. Table 14 estimates the 
current total annual opportunity cost of time to HR specialists 
completing and submitting an H-1B registration will be approximately 
$1,006,003.

   Table 14--Current Annual Average Opportunity Costs of Time for Submitting an H-1B Registration, Without an
                                      Attorney or Accredited Representative
----------------------------------------------------------------------------------------------------------------
                                                             Time burden to
                                                              complete H-1B    HR specialist's        Total
                                                Population    registration    opportunity cost  opportunity cost
                                                                 (hours)           of time           of time
                                                         A                 B                 C   D = (A x B x C)
----------------------------------------------------------------------------------------------------------------
Estimate of H-1B Registrations...............       38,221            0.5167            $50.94        $1,006,003
----------------------------------------------------------------------------------------------------------------
Source: USCIS Analysis.

    DHS estimates the total annual opportunity cost savings of time for 
not having to complete and submit H-1B registrations for beneficiaries 
with multiple registrations are expected to be $3,840,822, shown in 
Table 15.

    Table 15--Total Annual Opportunity Cost Savings of Time for H-1B
                              Registrations
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Average Current Opportunity Cost Time for Lawyers to          $2,834,819
 Complete H-1B Registration.............................
Average Current Opportunity Cost Time for HR Specialist        1,006,003
 to Complete H-1B Registration..........................
                                                         ---------------
    Total...............................................       3,840,822
------------------------------------------------------------------------
Source: USCIS Analysis.

    Prospective petitioners seeking to file H-1B cap-subject petitions, 
including for beneficiaries eligible for the additional visas for 
advanced degree holders, must first electronically register and pay the 
associated $10 H-1B registration fee for each prospective beneficiary. 
Due to this final change DHS estimates that prospective petitioners may 
now see an additional cost savings of $735,010. The annual total cost 
savings of this final beneficiary centric selection is $4,575,832.\43\
---------------------------------------------------------------------------

    \43\ Calculation: Total Opportunity Cost Savings of time for H-
1B Registrations ($3,840,822) + Total Cost Savings for Registration 
Fees ($735,010) = $4,575,832 Total Cost Savings.

        Table 16--Total Annual Cost Savings for Registration Fees
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Annual Registrations for the same beneficiaries.........          73,501
Registration Fee........................................             $10
                                                         ---------------
    Total Cost savings..................................        $735,010
------------------------------------------------------------------------
Source: USCIS Analysis.

    For purposes of this regulatory impact analysis, summarized in 
Table 2 A-4 Accounting Statement, the existing $10 registration fee is 
the appropriate baseline against which the impacts of the rule should 
be evaluated, however, DHS is simultaneously working on finalizing the 
``U.S. Citizenship and Immigration Services Fee Schedule and Changes to 
Certain Other Immigration Benefit Request Requirements'' Rule. In the 
NPRM, USCIS proposed to increase the H-1B registration fee from $10 to 
$215. If DHS were to finalize the proposed increase, Table 16b shows an 
even larger cost savings to registrants based on the estimated 
reduction in the number of registrations that would be submitted. 
Currently the cost savings would be $735,010 shown in Table 6 but would 
increase to $15,802,715 in Table 16b. If USCIS continued to see 
increased numbers of annual registrations for beneficiaries with 
multiple registrations, then the total cost savings of this rule would 
increase, for example if USCIS saw 100,000 annual registrations for 
beneficiaries with multiple registrations when the registration fee is 
$215, DHS would see a $21,500,000 \44\ cost savings from the 
beneficiary centric selection.
---------------------------------------------------------------------------

    \44\ Calculation: 100,000 Annual Registrations for beneficiaries 
with multiple registrations x $215 Registration Fee = $21,500,000 
Cost savings.

[[Page 7486]]



       Table 16b--Total Annual Cost Savings for Registration Fees
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Annual Registrations for beneficiaries with multiple              73,501
 registrations..........................................
Registration Fee........................................            $215
                                                         ---------------
    Total Cost savings..................................     $15,802,715
------------------------------------------------------------------------
Source: USCIS Analysis.

(4) Registrations With False Information or That Are Otherwise Invalid
    Although registration is an antecedent procedural step undertaken 
prior to filing an H-1B petition, the validity of the registration 
information is key to the registrant's eligibility to file a petition. 
As stated in the current regulations, ``[t]o be eligible to file a 
petition for a beneficiary who may be counted against the H-1B regular 
cap or the H-1B advanced degree exemption for a particular fiscal year, 
a registration must be properly submitted in accordance with 8 CFR 
103.2(a)(1), [8 CFR 214.2(h)(8)(iii),] and the form instructions.'' See 
8 CFR 214.2(h)(8)(iii)(A)(1). USCIS does not consider a registration to 
be properly submitted if the information contained in the registration, 
including the required attestations, was not true and correct. 
Currently, the regulations state that it is grounds for denial or 
revocation if the statements of facts contained in the petition are not 
true and correct, inaccurate, fraudulent, or misrepresented a material 
fact. DHS will clarify in the regulations that the grounds for denial 
of an H-1B petition or revocation of an H-1B petition approval extend 
to the information provided in the registration and to expressly state 
in the regulations that this includes attestations on the registration 
that are determined by USCIS to be false.
    DHS is also changing the regulations governing registration to 
provide USCIS with clearer authority to deny or revoke the approval of 
a petition based on a registration that was not properly submitted or 
was otherwise invalid.
    Specifically, DHS is adding that if a petitioner submits more than 
one registration per beneficiary in the same fiscal year, all 
registrations filed by that petitioner relating to that beneficiary for 
that fiscal year may be considered not only invalid, but that ``USCIS 
may deny or revoke the approval of any petition filed for the 
beneficiary based on those registrations.''
    Additionally, DHS is adding that USCIS may deny or revoke the 
approval of an H-1B petition if it determines that the fee associated 
with the registration is declined, not reconciled, disputed, or 
otherwise invalid after submission.
    These final changes may increase the need for RFEs and NOIDs. It is 
important to note that issuing RFEs and NOIDs takes time and effort for 
adjudicators--to send, receive, and adjudicate documentation--and it 
requires additional time and effort for petitioners to respond, 
resulting in extended timelines for adjudications.\45\ Data on RFEs and 
NOIDs related to H-1B false information are not standardized or tracked 
in a consistent way, thus they are not accurate or reliable.
---------------------------------------------------------------------------

    \45\ The regulations state that when an RFE is served by mail, 
the response is timely filed if it is received no more than 3 days 
after the deadline, providing a total of 87 days for a response to 
be submitted if USCIS provides the maximum period of 84 days under 
the regulations. The maximum response time for a NOID is 30 days. 
See Citizenship and Immigr. Servs., U.S. Dep't of Homeland Security, 
USCIS Policy Manual, Volume 1, ``General Policies and Procedures,'' 
Part E, ``Adjudications'', Chapter 6, ``Evidence.'' https://www.uscis.gov/policy-manual/volume-1-part-e-chapter-6.
---------------------------------------------------------------------------

(5) Alternatives Considered
    DHS considered the alternative of eliminating the registration 
system and reverting to the paper-based filing system stakeholders used 
prior to implementing registration. However, when DHS considered the 
cost savings that registration provides to both USCIS and stakeholders 
and the significant resources the agency would incur to revert back to 
a paper-based H-1B cap selection process, the benefits of having a 
registration system still outweigh the costs of abuse of the system.
Total Quantified Net Costs of the Final Regulatory Changes
    In this section, DHS presents the total annual cost savings of this 
final rule annualized over a 10-year period of analysis. Table 17 
details the annual cost savings of this final rule. DHS estimates the 
total cost savings is $4,575,832. This cost savings is based on the 
current registration fee of $10 per registration.

                    Table 17--Summary of Cost Savings
------------------------------------------------------------------------
                       Description                         Cost savings
------------------------------------------------------------------------
Beneficiary Centric Selection Cost of Time..............      $3,840,822
Beneficiary Centric Selection Cost of Registrations.....         735,010
                                                         ---------------
    Total Cost Savings..................................       4,575,832
------------------------------------------------------------------------
Source: USCIS Analysis.

    Table 17b shows the annual cost savings of this final rule under 
the proposed $215 registration fee. DHS estimates the total cost 
savings would be $19,643,537. The estimates in Tables 16b and 17b serve 
only to illustrate the impact to cost savings estimates if the fee is 
increased to $215 in a separate rulemaking.\46\
---------------------------------------------------------------------------

    \46\ See ``U.S. Citizenship and Immigration Services Fee 
Schedule and Changes to Certain Other Immigration Benefit Request 
Requirements,'' 88 FR 402, 527 (Jan. 4, 2023) (proposed rule).

   Table 17b--Summary of Cost Savings--Under Proposed Registration Fee
                                Increase
------------------------------------------------------------------------
                       Description                         Cost savings
------------------------------------------------------------------------
Beneficiary Centric Selection Cost of Time..............      $3,840,822
Beneficiary Centric Selection Cost of Registrations           15,802,715
 (Proposed $215 Fee)....................................
                                                         ---------------
    Total Cost Savings..................................      19,643,537
------------------------------------------------------------------------
Source: USCIS Analysis.

    DHS summarizes the annual costs of this final rule. Table 18 
details the annual costs of this final rule. DHS estimates the total 
cost is $2,376,458.

                       Table 18--Summary of Costs
------------------------------------------------------------------------
                        Description                             Costs
------------------------------------------------------------------------
The H-1B Registration System...............................   $2,376,458
                                                            ------------
    Total Costs............................................    2,376,458
------------------------------------------------------------------------
Source: USCIS Analysis.

    Net cost savings to the public of $2,199,374 are the total costs 
minus cost savings.\47\ Table 19 illustrates that over a 10-year period 
of analysis from FY 2023 through FY 2032 annualized cost savings will 
be $2,199,374 using 7-percent and 3-percent discount rates.
---------------------------------------------------------------------------

    \47\ Calculations: $4,575,832 Total Cost Savings-$2,376,458 
Total Costs = $2,199,3741 Net Cost Savings.

[[Page 7487]]



 Table 19--Discounted Net Cost Savings Over a 10-Year Period of Analysis
------------------------------------------------------------------------
                                        Total estimated cost savings
                                   -------------------------------------
                                          $2,199,374 (Undiscounted)
            Fiscal year            -------------------------------------
                                     Discounted at  3   Discounted at  7
                                         percent            percent
------------------------------------------------------------------------
2023..............................         $2,135,315         $2,055,490
2024..............................          2,073,121          1,921,018
2025..............................          2,012,739          1,795,344
2026..............................          1,954,115          1,677,892
2027..............................          1,897,199          1,568,123
2028..............................          1,841,941          1,465,536
2029..............................          1,788,292          1,369,660
2030..............................          1,736,206          1,280,056
2031..............................          1,685,637          1,196,314
2032..............................          1,636,541          1,118,050
                                   -------------------------------------
    10-year Total.................         18,761,106         15,447,483
                                   -------------------------------------
    Annualized Cost...............          2,199,374          2,199,374
------------------------------------------------------------------------

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601 and 602, 
as amended by the Small Business Regulatory Enforcement Fairness Act of 
1996, Public Law 104-121, requires Federal agencies to consider the 
potential impact of regulations on small businesses, small governmental 
jurisdictions, and small organizations during the development of their 
rules. The term ``small entities'' comprises small businesses, not-for-
profit organizations that are independently owned and operated and are 
not dominant in their fields, and governmental jurisdictions with 
populations of less than 50,000.\48\
---------------------------------------------------------------------------

    \48\ A small business is defined as any independently owned and 
operated business not dominant in its field that qualifies as a 
small business per the Small Business Act, 15 U.S.C. 632.
---------------------------------------------------------------------------

    An ``individual'' is not considered a small entity and costs to an 
individual are not considered a small entity impact for RFA purposes. 
In addition, the courts have held that the RFA requires an agency to 
perform a regulatory flexibility analysis of small entity impacts only 
when a rule directly regulates small entities.\49\ Consequently, 
indirect impacts from a rule on a small entity are not considered as 
costs for RFA purposes.
---------------------------------------------------------------------------

    \49\ See Small Business Administration, ``A Guide For Government 
Agencies, How to Comply with the Regulatory Flexibility Act,'' at 
22, https://advocacy.sba.gov/wp-content/uploads/2019/06/How-to-Comply-with-the-RFA.pdf (last visited Aug. 23 2023).
---------------------------------------------------------------------------

    USCIS's RFA analysis for this final rule focuses on the population 
of Form I-129 petitions for H-1B workers as a proxy for the impacts of 
this rule focused on H-1B registrations and associated registrants. 
Since H-1B registration is an antecedent procedural step taken before a 
selected registrant can file an H-1B petition, this is an appropriate 
proxy for analyzing the impacts of this final rule action on small 
entities. Where cost savings occur from multiple registrants no longer 
registering on behalf of a common beneficiary, either deliberately or 
inadvertently, USCIS is unable to quantify the portion of potential 
cost savings accruing to small entities. Some of these cost savings may 
be partially offset by the advantage multiple registrations conferred 
over single, unique registrants, but it is ambiguous whether such small 
entities enjoy this advantage or feel increasingly compelled to do this 
by their belief that other registrants are doing so.
    1. A statement of the need for, and objectives of, the rule.
    The purpose of this rulemaking is to amend the regulations relating 
to the H-1B registration selection process.
    2. A statement of the significant issues raised by the public 
comments in response to the IRFA, a statement of the assessment of the 
agency of such issues, and a statement of any changes made in the 
proposed rule as a result of such comments.
    DHS invited comments in the NPRM but did not receive any comments 
specific to the IRFA.\50\ USCIS responded to general comments 
concerning the rule in Section III. Public Comments on the Proposed 
Rule.
---------------------------------------------------------------------------

    \50\ Note however, that in ``U.S. Citizenship and Immigration 
Services Fee Schedule and Changes to Certain Other Immigration 
Benefit Request Requirements,'' 88 FR 402, 527 (Jan. 4, 2023) 
(proposed rule), DHS proposed to increase the H-1B registration fee 
from $10 to $215 per registration submitted. While the underlying 
purpose of the proposed fee increase is to ensure full cost recovery 
for USCIS adjudication and naturalization services, DHS recognizes 
the possibility that the increase in the H-1B registration fee may 
have an impact on the number of H-1B registrations submitted, 
including those submitted to improperly increase the chance of 
selection. However, any potential impact of that separate regulatory 
proposal is purely speculative. DHS also acknowledged this related 
rulemaking in the NPRM. See 88 FR 72870, 72897 (Oct. 23, 2023).
---------------------------------------------------------------------------

    3. The response of the agency to any comments filed by the Chief 
Counsel for Advocacy of the Small Business Administration in response 
to the proposed rule, and a detailed statement of any change made to 
the proposed rule in the final rule as a result of the comments.

[[Page 7488]]

    DHS invited comments in NPRM but did not receive any comments filed 
by the Chief Counsel for Advocacy of the Small Business Administration.
    4. A description and an estimate of the number of small entities to 
which the rule will apply or an explanation of why no such estimate is 
available.
    For this analysis, DHS conducted a sample analysis of historical 
Form I-129 H-1B petitions to estimate the number of small entities 
impacted by this rule. DHS utilized a subscription-based electronic 
database of U.S. entities, ReferenceUSA, as well as three other open-
access, free databases of public and private entities, Manta, Cortera, 
and Guidestar to determine the North American Industry Classification 
System (NAICS) code, revenue, and employee count for each entity. To 
determine whether an entity is small for purposes of RFA, DHS first 
classified the entity by its NAICS code and then used Small Business 
Administration (SBA) guidelines to classify the revenue or employee 
count threshold for each entity. Some entities were classified as small 
based on their annual revenue, and some by their numbers of employees.
    Using FY 2022 internal data on actual filings of Form I-129 H-1B 
petitions, DHS identified 44,593 unique entities. DHS devised a 
methodology to conduct the small entity analysis based on a 
representative, random sample of the potentially impacted population. 
DHS first determined the minimum sample size necessary to achieve a 95-
percent confidence level confidence interval estimation for the 
impacted population of entities using the standard statistical formula 
at a 5-percent margin of error. DHS then created a sample size greater 
than the minimum necessary to increase the likelihood that our matches 
would meet or exceed the minimum required sample. DHS notes that the 
random sample was drawn from the population of Form I-129 H-1B 
petitioners for purposes of estimating impacts of each provision in the 
NPRM, including those finalized here, on the population of Form I-129 
H-1B petitioners at-large. Alternative approaches would be to draw a 
random sample from the population of H-1B registrants, however, this 
approach encounters the same problem this final rule seeks to address. 
Namely, it is difficult to discern the relationship between 
registrations and the Form I-129 H-1B administrative data. Thus, 
analyzing the impact of changes to registrations by unique entities 
using a sample of Form I-129 H-1B data is preferred.
    DHS randomly selected a sample of 3,396 entities from the 
population of 44,593 entities that filed Form I-129 for H-1B petitions 
in FY 2022. Of the 3,396 entities, 1,724 entities returned a successful 
match of a filing entity in the ReferenceUSA, Manta, Cortera, and 
Guidestar databases; 1,672 entities did not return a match. Using these 
databases' revenue or employee count and their assigned NAICS code, DHS 
determined 1,209 of the 1,724 matches to be small entities, 515 to be 
non-small entities. DHS assumes filing entities without database 
matches or missing revenue/employee count data are likely to be small 
entities. As a result, in order to prevent underestimating the number 
of small entities this final rule will affect, DHS considers all the 
non-matched and missing entities as small entities for the purpose of 
this analysis. Therefore, DHS classifies 2,881 of 3,396 entities as 
small entities, including combined non-matches (1,672), and small 
entity matches (1,209). Thus, DHS estimates that 84.8 percent (2,881 of 
3,396) of the entities filing Form I-129 H-1B petitions are small 
entities.
    In this analysis DHS assumes that the distribution of firm size for 
our sample is the same as the entire population of Form I-129 H-1B 
petitioners. Thus, DHS estimates the number of small entities to be 
84.8 percent of the population of 44,593 entities that filed Form I-129 
under the H-1B classification, as summarized in Table 19 below. The 
annual numeric estimate of the small entities impacted by this final 
rule is 37,815 entities.\51\
---------------------------------------------------------------------------

    \51\ The annual numeric estimate of the small entities (37,815) 
= Population (44,593) * Percentage of small entities (84.8%).

   Table 19--Number of Small Entities for Form I-129 for H-1B, FY 2022
------------------------------------------------------------------------
                                                          Proportion of
              Population                Number of small     population
                                            entities        (percent)
------------------------------------------------------------------------
44,593................................          37,815             84.8
------------------------------------------------------------------------

    Following the distributional assumptions above, DHS uses the set of 
1,209 small entities with matched revenue data to estimate the economic 
impact of the final rule on each small entity. Typically, DHS will 
estimate the economic impact, in percentage, for each small entity is 
the sum of the impacts of the final changes divided by the entity's 
sales revenue.\52\ DHS constructed the distribution of economic impact 
of the final rule based on the 1,209 small entity matches in the 
sample. Because this final rule resulted in an overall cost savings for 
registrants there also would be no adverse impact on the estimated 
small entity population. Based on FY 2022 revenue, of the 1,209 small 
entities, 0 percent (0 small entities) would experience a cost increase 
that is greater than 1 percent of revenues.
---------------------------------------------------------------------------

    \52\ The economic impact, in percentage, for each small entity i 
= ((Cost of one petition for entity i x Number of petitions for 
entity i)/Entity i's sales revenue) x 100.
    The cost of one petition for entity i ($1-4.43) is estimated by 
dividing the total cost of this proposed rule by the estimated 
population. -$2,199,374/355,592 = -$6.19
    The entity's sales revenue is taken from ReferenceUSA, Manta, 
Cortera, and Guidestar databases.
---------------------------------------------------------------------------

    5. A description of the projected reporting, recordkeeping, and 
other compliance requirements of the rule, including an estimate of the 
classes of small entities that will be subject to the requirement and 
the types of professional skills necessary for preparation of the 
report or record.
    The beneficiary centric selection process would result in 
additional burden to employers reporting beneficiaries' passport or 
travel document information in the registration system. DHS estimates 
increase for each of these respective burdens is 5 minutes.
    6. A description of the steps the agency has taken to minimize the 
significant adverse economic impact on small entities
    With respect to beneficiary centric selection process, there are no 
burdens to be minimized. While collection of passport or travel 
document information imposes some burden to prospective employers, 
USCIS found no other alternatives that achieved stated objectives with 
less burden to small entities.

[[Page 7489]]

C. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (UMRA) is intended, among 
other things, to curb the practice of imposing unfunded Federal 
mandates on State, local, and Tribal governments. Title II of UMRA 
requires each Federal agency to prepare a written statement assessing 
the effects of any Federal mandate in a proposed rule, or final rule 
for which the agency published a proposed rule, that includes any 
Federal mandate that may result in a $100 million or more expenditure 
(adjusted annually for inflation) in any one year by State, local, and 
tribal governments, in the aggregate, or by the private sector.\53\
---------------------------------------------------------------------------

    \53\ See 2 U.S.C. 1532(a).
---------------------------------------------------------------------------

    In addition, the inflation-adjusted value of $100 million in 1995 
is approximately $192 million in 2022 based on the Consumer Price Index 
for All Urban Consumers (CPI-U).\54\ This final rule does not contain a 
Federal mandate as the term is defined under UMRA.\55\ The requirements 
of title II of UMRA, therefore, do not apply, and DHS has not prepared 
a statement under UMRA.
---------------------------------------------------------------------------

    \54\ See BLS, ``Historical Consumer Price Index for All Urban 
Consumers (CPI-U): U.S. city average, all items, by month,'' 
www.bls.gov/cpi/tables/supplemental-files/historical-cpi-u-202212.pdf (last visited Jan. 19, 2023). Calculation of inflation: 
(1) Calculate the average monthly CPI-U for the reference year 
(1995) and the current year (2022); (2) Subtract reference year CPI-
U from current year CPI-U; (3) Divide the difference of the 
reference year CPI-U and current year CPI-U by the reference year 
CPI-U; (4) Multiply by 100 = [(Average monthly CPI-U for 2022-
Average monthly CPI-U for 1995)/(Average monthly CPI-U for 1995)] * 
100 = [(292.655-152.383)/152.383] * 100 = (140.272/152.383) * 100 = 
0.92052263 * 100 = 92.05 percent = 92 percent (rounded). Calculation 
of inflation-adjusted value: $100 million in 1995 dollars * 1.92 = 
$192 million in 2022 dollars.
    \55\ The term ``Federal mandate'' means a Federal 
intergovernmental mandate or a Federal private sector mandate. See 2 
U.S.C. 1502(1), 658(6).
---------------------------------------------------------------------------

D. Congressional Review Act

    OIRA has determined that this final rule is not a major rule, as 
defined in 5 U.S.C. 804, for purposes of Congressional review of agency 
rulemaking pursuant to the Congressional Review Act, Public Law 104-
121, title II, sec. 251 (Mar. 29, 1996), 110 Stat. 868 (codified at 5 
U.S.C. 801-808). This rule will not result in an annual effect on the 
economy of $100 million or more.
    DHS will send this rule to Congress and to the Comptroller General 
as required by 5 U.S.C. 801(a)(1).

E. Executive Order 13132 (Federalism)

    This final rule would not have substantial direct effects on the 
States, on the relationship between the National Government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with section 6 
of Executive Order 13132, it is determined that this final rule does 
not have sufficient federalism implications to warrant the preparation 
of a federalism summary impact statement.

F. Executive Order 12988: Civil Justice Reform

    This final rule was drafted and reviewed in accordance with E.O. 
12988, Civil Justice Reform. This final rule was written to provide a 
clear legal standard for affected conduct and was carefully reviewed to 
eliminate drafting errors and ambiguities, so as to minimize litigation 
and undue burden on the Federal court system. DHS has determined that 
this final rule meets the applicable standards provided in section 3 of 
E.O. 12988.

G. Executive Order 13175 (Consultation and Coordination With Indian 
Tribal Governments)

    This final rule does not have ``tribal implications'' because it 
will not have substantial direct effects on one or more Indian Tribes, 
on the relationship between the Federal Government and Indian Tribes, 
or on the distribution of power and responsibilities between the 
Federal Government and Indian Tribes. Accordingly, E.O. 13175, 
Consultation and Coordination with Indian Tribal Governments, requires 
no further agency action or analysis.

H. National Environmental Policy Act (NEPA)

National Environmental Policy Act Public Comments
    As discussed in the NEPA section of the NPRM,\56\ DHS proposed a 
broader set of reforms in the H-1B program, as well as discrete reforms 
impacting other nonimmigrant programs. DHS received one public comment 
on the NEPA discussion in the NPRM. DHS is addressing that comment here 
to the extent it pertains to the provisions of this final rule. DHS 
will also consider the public comment in the context of any future rule 
it may issue to finalize the remainder of the reforms proposed in the 
NPRM.
---------------------------------------------------------------------------

    \56\ 88 FR 72870, 72955 (Oct. 23, 2023).
---------------------------------------------------------------------------

    Comment: One commenter asserted that DHS's reliance on categorical 
exclusion (``CATEX'') A3 \57\ is arbitrary and capricious and indicated 
that DHS must prepare an environmental impact statement or at least an 
environmental assessment before finalizing the NPRM. The commenter 
asserted that the action proposed in the NPRM is an action that, by its 
nature, increases the population because its goal is to increase the 
number of foreign nationals who enter the country. The commenter argued 
that the action proposed in the NPRM has the potential to have a 
cumulative effect when combined with other actions that increase levels 
of immigration, and that it should be considered rather than 
categorically excluded. The commenter further stated that DHS's use of 
categorical exclusion A3 is ``entirely irrational'' because DHS could 
not assess the environmental impact of the rule and thus concluded that 
the rule is of the type that would not have any. The commenter further 
stated that the NPRM does not fit into any of the categories under 
CATEX A3, and that DHS was not considering rules that increase 
immigration to the United States when it formulated this rule.
---------------------------------------------------------------------------

    \57\ The commenter stated: ``Categorical exclusion A3, in full, 
is as follows: A3 Promulgation of rules, issuance of rulings or 
interpretations, and the development and publication of policies, 
orders, directives, notices, procedures, manuals, advisory 
circulars, and other guidance documents of the following nature: (a) 
Those of a strictly administrative or procedural nature; (b) Those 
that implement, without substantive change, statutory or regulatory 
requirements; (c) Those that implement, without substantive change, 
procedures, manuals, and other guidance documents; (d) Those that 
interpret or amend an existing regulation without changing its 
environmental effect; (e) Technical guidance on safety and security 
matters; or (f) Guidance for the preparation of security plans.''
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    Response: DHS disagrees with both the factual and the legal 
assertions made by this commenter. The commenter cited no data, 
analysis, evidence, or statements made by DHS in the NPRM to support 
the commenter's assertion. Specifically with respect to the provisions 
being finalized through this rule, the intended and expected impact of 
those provisions has no relationship to increasing the number of 
foreign nationals in the United States. Rather, as discussed throughout 
this preamble, DHS is amending existing regulations to make the H-1B 
registration selection process fairer for all beneficiaries and improve 
the integrity of the program as a whole. The inclusion of start date 
flexibility in this final rule eliminates a confusing regulatory 
provision and aligns with current USCIS practice to allow petitioners 
to list a start date on the H-1B petition that is later than October 1 
of a fiscal year for which an H-1B registration was selected. In 
addition, the expansion of existing regulatory provisions governing the 
denial of H-1B, H-2A, and H-2B petitions based on false statements

[[Page 7490]]

(including findings of fraud or willful misrepresentation) made not 
only in the petition, but also in the H-1B registration, LCA, or TLC, 
as applicable, is intended to improve program integrity and provide 
USCIS with more explicit authority to deny or revoke petitions on the 
basis of false statements (including findings of fraud or willful 
misrepresentation). The amendments to existing regulations in this 
final rule clearly fit within CATEX A3 because they are administrative 
in nature, do not have the potential for significantly affecting the 
environment, and do not result in a change in any environmental effect 
of the current regulations. For example, the current H-1B registration 
process is fully electronic--registrants submit electronic 
registrations into the system and DHS selects from those registrations 
toward the 65,000 statutory annual cap or the statutory 20,000 advanced 
degree exemption. After implementation of this final rule, DHS will 
continue to select toward the two statutory allocations but will do so 
based on each unique beneficiary, rather than registration. This change 
is not intended to increase the number of visas or foreign nationals 
that may come to the United States, and DHS does not foresee such an 
increase given the statutorily mandated annual numerical limitations. 
With respect to the start date flexibility provisions, DHS already 
accepts H-1B petitions with start dates after October 1 of a fiscal 
year so long as the start date is in the same fiscal year as the fiscal 
year for which an H-1B registration is selected and within 6 months of 
the petition filing date. This regulatory change is not intended to 
increase the number of visas or foreign nationals in the United States, 
and DHS does not foresee such an increase because start date 
flexibility is merely a technical change to eliminate potential 
confusion when the applicable filing period extends after October 1 of 
the applicable fiscal year. Finally, the provisions governing the 
denial and revocation of petitions will provide more explicit authority 
for USCIS to deny or revoke H-1B petitions based on false statements 
but similarly is not intended to increase the number of visas or 
foreign nationals who may come to the United States, nor can DHS 
foresee such an increase happening.
NEPA Final Rule Analysis
    DHS and its components analyze proposed actions to determine 
whether the National Environmental Policy Act (NEPA) \58\ applies to 
them and, if so, what degree of analysis is required. DHS Directive 
023-01, Rev. 01 (Directive) and Instruction Manual 023-01-001-01, Rev. 
01 (Instruction Manual) \59\ establish the procedures DHS and its 
components use to comply with NEPA and the Council on Environmental 
Quality (CEQ) regulations for implementing NEPA.\60\ The CEQ 
regulations allow Federal agencies to establish in their NEPA 
implementing procedures categories of actions (``categorical 
exclusions'') that experience has shown normally do not individually or 
cumulatively have a significant effect on the human environment and, 
therefore, do not require preparation of an Environmental Assessment or 
Environmental Impact Statement.\61\ Instruction Manual, Appendix A, 
Table 1 lists the DHS categorical exclusions.
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    \58\ See Public Law 91-190, 42 U.S.C. 4321- 4347.
    \59\ See DHS, ``Implementing the National Environmental Policy 
Act,'' DHS Directive 023-01, Rev 01 (Oct. 31, 2014), and DHS 
Instruction Manual Rev. 01 (Nov. 6, 2014), https://www.dhs.gov/publication/directive-023-01-rev-01-and-instruction-manual-023-01-001-01-rev-01-and-catex.
    \60\ See 40 CFR parts 1500 through 1508.
    \61\ See 40 CFR 1501.4(a).
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    Under DHS NEPA implementing procedures, for an action to be 
categorically excluded, it must satisfy each of the following three 
conditions: (1) the entire action clearly fits within one or more of 
the categorical exclusions; (2) the action is not a piece of a larger 
action; and (3) no extraordinary circumstances exist that create the 
potential for a significant environmental effect.\62\
---------------------------------------------------------------------------

    \62\ See Instruction Manual, section V.B.2 (a-c).
---------------------------------------------------------------------------

    As discussed throughout this preamble, this final rule will provide 
for the equal chance of selection for all H-1B beneficiaries and 
improve the integrity of the H-1B registration selection process 
through beneficiary centric selection, will allow for start date 
flexibility for H-1B petitioners, and will expand the ability of USCIS 
to deny and/or revoke petitions based on false statements made not just 
in the H-1B petition, but also in the H-1B registration, LCA, or TLC 
(applicable to H-2 programs).
    DHS considers these changes to be strictly administrative in 
nature, and finds they will have no significant impact on the 
environment, or any change in the environmental effect that will result 
from the final rule changes. DHS therefore finds this final rule 
clearly fits within categorical exclusion A3 established in the 
Department's implementing procedures.
    Although, the amendments being put into place by this final rule 
were initially proposed as part of an NPRM \63\ that included broader 
proposed reforms, these amendments can and will operate independently 
from the other proposed reforms and do not depend on those proposals 
being finalized. Inclusion of all proposed reforms in a single NPRM was 
for purposes of administrative efficiency and not an indication that 
the proposed regulatory amendments in this final rule are a necessary 
part of a larger regulatory action.
---------------------------------------------------------------------------

    \63\ 88 FR 72870 (Oct. 23, 2023).
---------------------------------------------------------------------------

    DHS plans to address the other proposed reforms included in the 
NPRM through a separate final rule in which it will also discuss NEPA. 
However, this rule and any subsequent final rule resulting from the 
NPRM are each stand-alone regulatory actions. In accordance with the 
Instruction Manual's NEPA implementing procedures, DHS has completed an 
evaluation of this rule to determine whether it involves one or more of 
the ten identified extraordinary circumstances \64\ that present the 
potential for significant environmental impacts. DHS concludes from its 
analysis that no extraordinary circumstances are present requiring 
further environmental analysis and documentation. Therefore, this 
action is

[[Page 7491]]

categorically excluded and no further NEPA analysis is required.
---------------------------------------------------------------------------

    \64\ i. A potentially significant effect on public health or 
safety; ii. A potentially significant effect on species or habitats 
protected by the ESA, Marine Mammal Protection Act, Migratory Bird 
Treaty Act, Magnuson-Stevens Fishery Conservation and Management 
Act, or other law protecting a species or habitat; iii. A 
potentially significant effect on historic properties (e.g., 
districts, sites, buildings, structures, or objects) that are listed 
in or eligible for listing in the National Register of Historic 
Places, affects traditional cultural properties or sacred sites, or 
leads to the loss or destruction of a significant scientific, 
cultural, or historical resource; iv. A potentially significant 
effect on an environmentally sensitive area. v. A potential or 
threatened violation of a Federal, State, or local law or 
requirement imposed to protect the environment. Some examples of 
other requirements to consider are: a local noise control ordinance; 
the requirement to conform to an applicable State Implementation 
Plan for air quality standards; Federal, Tribal, State, or local 
requirements to control hazardous or toxic substances; and 
environmental permits; vi. An effect on the quality of the human 
environment that is likely to be highly controversial in terms of 
scientific validity, likely to be highly uncertain, or likely to 
involve unique or unknown environmental risks. This also includes 
effects that may result from the use of new technology or unproven 
technology. Controversy over, including public opposition to, a 
proposed action absent any demonstrable potential for significant 
environmental impacts does not itself constitute an extraordinary 
circumstance; vii. Extent to which a precedent is established for 
future actions with significant effects; viii. Significantly greater 
scope or size than normally experienced for this particular category 
of action; ix. Potential for significant degradation of already 
existing poor environmental conditions. Also, initiation of a 
potentially significant environmental degrading influence, activity, 
or effect in areas not already significantly modified from their 
natural condition; x. Whether the action is related to other actions 
with individually insignificant, but cumulatively significant 
impacts.
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I. Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501-
3512, DHS must submit to the OMB, for review and approval, any 
reporting requirements inherent in a rule, unless they are exempt.
    In compliance with the PRA, DHS published an NPRM on October 23, 
2023, in which comments on the revisions to the information collections 
associated with this rulemaking were requested. Any comments received 
on information collections activities were related to the beneficiary 
centric changes and documentation required for establishing unique 
beneficiary identification. DHS responded to those comments in Section 
III. of this final rule. The information collection instruments that 
will be revised with this final rule are described below.
H-1B Registration Tool (OMB Control No. 1615-0144)
    Overview of information collection:
    (1) Type of Information Collection: Revision of a Currently 
Approved Collection.
    (2) Title of the Form/Collection: H-1B Registration Tool.
    (3) Agency form number, if any, and the applicable component of DHS 
sponsoring the collection: OMB-64; USCIS.
    (4) Affected public who will be asked or required to respond, as 
well as a brief abstract: Primary: Business or other for-profit. USCIS 
uses the data collected on this form to determine which employers will 
be informed that they may submit a USCIS Form I-129, Petition for 
Nonimmigrant Worker, for H-1B classification.
    (5) An estimate of the total number of respondents and the amount 
of time estimated for an average respondent to respond: The estimated 
total number of respondents for the information collection H-1B 
Registration Tool (Businesses) is 20,950 and the estimated hour burden 
per response is 0.6 hours. The estimated total number of respondents 
for the information collection H-1B Registration Tool (Attorneys) is 
19,339 and the estimated hour burden per response is 0.6 hours. The 
total number of responses (355,590) is estimated by averaging the total 
number of registrations received during the H-1B cap FYs 2021, 2022, 
and 2023.
    (6) An estimate of the total public burden (in hours) associated 
with the collection: The total estimated annual hour burden associated 
with this collection of information is 213,354 hours.
    (7) An estimate of the total public burden (in cost) associated 
with the collection: The estimated total annual cost burden associated 
with this collection of information is $0.
Form I-129 (OMB Control No. 1615-0009)
    (1) Type of Information Collection: Revision of a Currently 
Approved Collection.
    (2) Title of the Form/Collection: Petition for Nonimmigrant Worker.
    (3) Agency form number, if any, and the applicable component of DHS 
sponsoring the collection: I-129, E-1/E-2 Classification Supplement, 
Trade Agreement Supplement, H Classification Supplement, H-1B and H-1B1 
Data Collection and Filing Exemption Supplement, L Classification 
Supplement, O and P Classification Supplement, Q-1 Classification 
Supplement, and R-1 Classification Supplement; USCIS.
    (4) Affected public who will be asked or required to respond, as 
well as a brief abstract: Primary: Business or other for-profit. USCIS 
uses Form I-129 and accompanying supplements to determine whether the 
petitioner and beneficiary(ies) is (are) eligible for the nonimmigrant 
classification. A U.S. employer, or agent in some instances, may file a 
petition for nonimmigrant worker to employ foreign nationals under the 
following nonimmigrant classifications: H-1B, H-2A, H-2B, H-3, L-1, O-
1, O-2, P-1, P-2, P-3, P-1S, P-2S, P-3S, Q-1, or R-1 nonimmigrant 
worker. The collection of this information is also required from a U.S. 
employer on a petition for an extension of stay or change of status for 
E-1, E-2, E-3, Free Trade H-1B1 Chile/Singapore nonimmigrants and TN 
(USMCA workers) who are in the United States.
    (5) An estimate of the total number of respondents and the amount 
of time estimated for an average respondent to respond: The estimated 
total number of respondents for the information collection I-129 is 
294,751 and the estimated hour burden per response is 2.42 hours. The 
estimated total number of respondents for the information collection E-
1/E-1 Classification Supplement is 4,760 and the estimated hour burden 
per response is 0.67 hours. The estimated total number of respondents 
for the information collection Trade Agreement Supplement is 3,057 and 
the estimated hour burden per response is 0.67 hours. The estimated 
total number of respondents for the information collection H 
Classification is 96,291 and the estimated hour burden per response is 
2.07 hours. The estimated total number of respondents for the 
information collection H-1B and H-1B1 Data Collection and Filing Fee 
Exemption Supplement is 96,291 and the estimated hour burden per 
response is 1 hour. The estimated total number of respondents for the 
information collection L Classification Supplement is 37,831 and the 
estimated hour burden per response is 1.34 hours. The estimated total 
number of respondents for the information collection O and P 
Classification Supplement is 22,710 and the estimated hour burden per 
response is 1 hour. The estimated total number of respondents for the 
information collection Q-1 Classification Supplement is 155 and the 
estimated hour burden per response is 0.34 hours. The estimated total 
number of respondents for the information collection R-1 Classification 
Supplement is 6,635 and the estimated hour burden per response is 2.34 
hours.
    (6) An estimate of the total public burden (in hours) associated 
with the collection: The total estimated annual hour burden associated 
with this collection of information is 1,103,130 hours.
    (7) An estimate of the total public burden (in cost) associated 
with the collection: The estimated total annual cost burden associated 
with this collection of information is $70,681,290.

VI. List of Subjects and Regulatory Amendments

List of Subjects in 8 CFR part 214

    Administrative practice and procedure, Aliens, Cultural exchange 
program, Employment, Foreign officials, Health professions, Reporting 
and recordkeeping requirements, Students.
    Accordingly, DHS amends chapter I of title 8 of the Code of Federal 
Regulations as follows:

PART 214--NONIMMIGRANT CLASSES

0
1. The authority citation for part 214 continues to read as follows:

    Authority:  6 U.S.C. 202, 236; 8 U.S.C. 1101, 1102, 1103, 1182, 
1184, 1186a, 1187, 1221, 1281, 1282, 1301-1305, 1357, and 1372; sec. 
643, Pub. L. 104-208, 110 Stat. 3009-708; Pub. L. 106-386, 114 Stat. 
1477-1480; section 141 of the Compacts of Free Association with the 
Federated States of Micronesia and the Republic of the Marshall 
Islands, and with the Government of Palau, 48 U.S.C. 1901 note and 
1931 note, respectively; 48 U.S.C. 1806; 8 CFR part 2; Pub. L. 115-
218, 132 Stat. 1547 (48 U.S.C. 1806).


0
2. Amend Sec.  214.2 by:

[[Page 7492]]

0
a. Revising paragraphs (h)(8)(iii)(A), (D) and (E);
0
b. Revising and republishing paragraph (h)(8)(v);
0
c. Revising paragraph (h)(10)(ii);
0
d. Adding new paragraph (h)(10)(iii);
0
e. Revising paragraphs (h)(11)(iii)(A)(2) and (5); and
0
f. Adding paragraph (h)(11)(iii)(A)(6).
    The revisions and additions read as follows:
* * * * *


Sec.  214.2  Special requirements for admission, extension, and 
maintenance of status.

* * * * *
    (h) * * *
    (8) * * *
    (iii) * * *
    (A) Registration--(1) Registration requirement. Except as provided 
in paragraph (h)(8)(iv) of this section, before a petitioner can file 
an H-1B cap-subject petition for a beneficiary who may be counted under 
section 214(g)(1)(A) of the Act (``H-1B regular cap'') or eligible for 
exemption under section 214(g)(5)(C) of the Act (``H-1B advanced degree 
exemption''), the petitioner must register to file a petition on behalf 
of a beneficiary electronically through the USCIS website 
(www.uscis.gov). To be eligible to file a petition for a beneficiary 
who may be counted against the H-1B regular cap or the H-1B advanced 
degree exemption for a particular fiscal year, a registration must be 
properly submitted in accordance with 8 CFR 103.2(a)(1), paragraph 
(h)(8)(iii) of this section, and the form instructions, for the same 
fiscal year.
    (2) Limitation on beneficiaries. A prospective petitioner must 
electronically submit a separate registration for each beneficiary it 
seeks to register, and each beneficiary must be named. A petitioner may 
only submit one registration per beneficiary in any fiscal year. If a 
petitioner submits more than one registration per beneficiary in the 
same fiscal year, all registrations filed by that petitioner relating 
to that beneficiary for that fiscal year may be considered invalid, and 
USCIS may deny or revoke the approval of any H-1B petition filed for 
the beneficiary based on those registrations. If USCIS determines that 
registrations were submitted for the same beneficiary by the same or 
different registrants, but using different identifying information, 
USCIS may find those registrations invalid and deny or revoke the 
approval of any H-1B petition filed based on those registrations. 
Petitioners will be given notice and the opportunity to respond before 
USCIS denies or revokes the approval of a petition.
    (3) Initial registration period. The annual initial registration 
period will last a minimum of 14 calendar days and will start at least 
14 calendar days before the earliest date on which H-1B cap-subject 
petitions may be filed for a particular fiscal year, consistent with 
paragraph (h)(2)(i)(I) of this section. USCIS will announce the start 
and end dates of the initial registration period on the USCIS website 
at www.uscis.gov for each fiscal year. USCIS will announce the start of 
the initial registration period at least 30 calendar days in advance of 
such date.
    (4) Selecting registrations based on unique beneficiaries. 
Registrations will be counted based on the number of unique 
beneficiaries who are registered. USCIS will separately notify each 
registrant that their registration on behalf of a beneficiary has been 
selected, and that the petitioner(s) may file a petition(s) for that 
beneficiary. A petitioner may file an H-1B cap-subject petition on 
behalf of a registered beneficiary only after their properly submitted 
registration for that beneficiary has been selected for that fiscal 
year.
    (i) Should a random selection be necessary, as provided in 
paragraphs (h)(8)(iii)(A)(5)(ii), (h)(8)(iii)(A)(6)(ii), and 
(h)(8)(iii)(A)(7) of this section, each unique beneficiary will only be 
counted once towards the random selection of registrations, regardless 
of how many registrations were submitted for that beneficiary.
    (ii) Registrations must include the beneficiary's valid passport 
information or valid travel document information, as specified in the 
form instructions. Each beneficiary must only be registered under one 
passport or travel document, and if or when the beneficiary is abroad, 
the passport information or travel document information must correspond 
to the passport or travel document the beneficiary intends to use to 
enter the United States.
    (5) Regular cap selection. In determining whether there are enough 
registrations for unique beneficiaries to meet the H-1B regular cap, 
USCIS will consider all properly submitted registrations relating to 
beneficiaries that may be counted under section 214(g)(1)(A) of the 
Act, including those that may also be eligible for exemption under 
section 214(g)(5)(C) of the Act. Registrations will be counted based on 
the number of unique beneficiaries that are registered.
    (i) Fewer registrations than needed to meet the H-1B regular cap. 
At the end of the annual initial registration period, if USCIS 
determines that it has received fewer registrations for unique 
beneficiaries than needed to meet the H-1B regular cap, USCIS will 
notify all petitioners that have properly registered that their 
registrations have been selected. USCIS will keep the registration 
period open beyond the initial registration period, until it determines 
that it has received a sufficient number of registrations for unique 
beneficiaries to meet the H-1B regular cap. Once USCIS has received a 
sufficient number of registrations for unique beneficiaries to meet the 
H-1B regular cap, USCIS will no longer accept registrations for 
petitions subject to the H-1B regular cap under section 214(g)(1)(A) of 
the Act. USCIS will monitor the number of registrations received and 
will notify the public of the date that USCIS has received the 
necessary number of registrations for unique beneficiaries (the ``final 
registration date''). The day the public is notified will not control 
the applicable final registration date. When necessary to ensure the 
fair and orderly allocation of numbers under section 214(g)(1)(A) of 
the Act, USCIS may randomly select the remaining number of 
registrations for unique beneficiaries deemed necessary to meet the H-
1B regular cap from among the registrations received on the final 
registration date. This random selection will be made via computer-
generated selection, based on the unique beneficiary.
    (ii) Sufficient registrations to meet the H-1B regular cap during 
initial registration period. At the end of the initial registration 
period, if USCIS determines that it has received more than sufficient 
registrations for unique beneficiaries to meet the H-1B regular cap, 
USCIS will no longer accept registrations under section 214(g)(1)(A) of 
the Act and will notify the public of the final registration date. 
USCIS will randomly select from among the registrations properly 
submitted during the initial registration period the number of 
registrations for unique beneficiaries deemed necessary to meet the H-
1B regular cap. This random selection will be made via computer-
generated selection, based on the unique beneficiary.
    (6) Advanced degree exemption selection. After USCIS has determined 
it will no longer accept registrations under section 214(g)(1)(A) of 
the Act, USCIS will determine whether there is a sufficient number of 
remaining registrations to meet the H-1B advanced degree exemption.
    (i) Fewer registrations than needed to meet the H-1B advanced 
degree exemption numerical limitation. If

[[Page 7493]]

USCIS determines that it has received fewer registrations for unique 
beneficiaries than needed to meet the H-1B advanced degree exemption 
numerical limitation, USCIS will notify all petitioners that have 
properly registered that their registrations have been selected. USCIS 
will continue to accept registrations to file petitions for 
beneficiaries that may be eligible for the H-1B advanced degree 
exemption under section 214(g)(5)(C) of the Act until USCIS determines 
that it has received enough registrations for unique beneficiaries to 
meet the H-1B advanced degree exemption numerical limitation. USCIS 
will monitor the number of registrations received and will notify the 
public of the date that USCIS has received the necessary number of 
registrations for unique beneficiaries (the ``final registration 
date''). The day the public is notified will not control the applicable 
final registration date. When necessary to ensure the fair and orderly 
allocation of numbers under sections 214(g)(1)(A) and 214(g)(5)(C) of 
the Act, USCIS may randomly select the remaining number of 
registrations for unique beneficiaries deemed necessary to meet the H-
1B advanced degree exemption numerical limitation from among the 
registrations properly submitted on the final registration date. This 
random selection will be made via computer-generated selection, based 
on the unique beneficiary.
    (ii) Sufficient registrations to meet the H-1B advanced degree 
exemption numerical limitation. If USCIS determines that it has 
received more than enough registrations for unique beneficiaries to 
meet the H-1B advanced degree exemption numerical limitation, USCIS 
will no longer accept registrations that may be eligible for exemption 
under section 214(g)(5)(C) of the Act and will notify the public of the 
final registration date. USCIS will randomly select the number of 
registrations for unique beneficiaries needed to meet the H-1B advanced 
degree exemption numerical limitation from among the remaining 
registrations for unique beneficiaries who may be counted against the 
advanced degree exemption numerical limitation. This random selection 
will be made via computer-generated selection, based on the unique 
beneficiary.
    (7) Increase to the number of beneficiaries projected to meet the 
H-1B regular cap or advanced degree exemption allocations in a fiscal 
year. Unselected registrations will remain on reserve for the 
applicable fiscal year. If USCIS determines that it needs to increase 
the number of registrations for unique beneficiaries projected to meet 
the H-1B regular cap or advanced degree exemption allocation, and 
select additional registrations for unique beneficiaries, USCIS will 
select from among the registrations that are on reserve a sufficient 
number to meet the H-1B regular cap or advanced degree exemption 
numerical limitation, as applicable. If all of the registrations on 
reserve are selected and there are still fewer registrations than 
needed to meet the H-1B regular cap or advanced degree exemption 
numerical limitation, as applicable, USCIS may reopen the applicable 
registration period until USCIS determines that it has received a 
sufficient number of registrations for unique beneficiaries projected 
as needed to meet the H-1B regular cap or advanced degree exemption 
numerical limitation. USCIS will monitor the number of registrations 
received and will notify the public of the date that USCIS has received 
the necessary number of registrations (the new ``final registration 
date''). The day the public is notified will not control the applicable 
final registration date. When necessary to ensure the fair and orderly 
allocation of numbers, USCIS may randomly select the remaining number 
of registrations for unique beneficiaries deemed necessary to meet the 
H-1B regular cap or advanced degree exemption numerical limitation from 
among the registrations properly submitted on the final registration 
date. If the registration period will be reopened, USCIS will announce 
the start of the re-opened registration period on the USCIS website at 
www.uscis.gov.
* * * * *
    (D) H-1B cap-subject petition filing following registration--(1) 
Filing procedures. In addition to any other applicable requirements, a 
petitioner may file an H-1B petition for a beneficiary who may be 
counted under section 214(g)(1)(A) of the Act or eligible for exemption 
under section 214(g)(5)(C) of the Act only if the petition is based on 
a valid registration, which means that the registration was properly 
submitted in accordance with 8 CFR 103.2(a)(1), paragraph (h)(8)(iii) 
of this section, and the registration tool instructions; and was 
submitted by the petitioner, or its designated representative, on 
behalf of the beneficiary who was selected for that cap season by 
USCIS. A petitioner may not substitute the beneficiary named in the 
original registration or transfer the registration to another 
petitioner. Any H-1B petition filed on behalf of a beneficiary must 
contain and be supported by the same identifying information provided 
in the selected registration. Petitioners must submit evidence of the 
passport or travel document used at the time of registration to 
identify the beneficiary. In its discretion, USCIS may find that a 
change in identifying information in some circumstances would be 
permissible. Such circumstances could include, but are not limited to, 
a legal name change due to marriage, change in gender identity, or a 
change in passport number or expiration date due to renewal or 
replacement of a stolen passport, in between the time of registration 
and filing the petition. USCIS may deny or revoke the approval of an H-
1B petition that does not meet these requirements.
    (2) Registration fee. USCIS may deny or revoke the approval of an 
H-1B petition if it determines that the fee associated with the 
registration is declined, not reconciled, disputed, or otherwise 
invalid after submission. The registration fee is non-refundable and 
due at the time the registration is submitted.
    (3) Filing period. An H-1B cap-subject petition must be properly 
filed within the filing period indicated on the relevant selection 
notice. The filing period for filing the H-1B cap-subject petition will 
be at least 90 days. If petitioners do not meet the requirements of 
this paragraph (h)(8)(iii)(D), USCIS may deny or reject the H-1B cap-
subject petition.
    (E) Calculating the number of registrations needed to meet the H-1B 
regular cap and H-1B advanced degree exemption allocation. When 
calculating the number of registrations for unique beneficiaries needed 
to meet the H-1B regular cap and the H-1B advanced degree exemption 
numerical limitation for a given fiscal year, USCIS will take into 
account historical data related to approvals, denials, revocations, and 
other relevant factors. If necessary, USCIS may increase those numbers 
throughout the fiscal year.
* * * * *
    (v) Severability. (A) The requirement to submit a registration for 
an H-1B cap-subject petition and the selection process based on 
properly submitted registrations under paragraph (h)(8)(iii) of this 
section are intended to be severable from paragraph (h)(8)(iv) of this 
section. In the event paragraph (h)(8)(iii) of this section is not 
implemented, or in the event that paragraph (h)(8)(iv) of this section 
is not implemented, DHS intends that either of those provisions be 
implemented as an independent rule, without prejudice to

[[Page 7494]]

petitioners in the United States under this regulation, as consistent 
with law.
    (B) DHS intends that the provisions governing the beneficiary 
centric selection process in paragraph (h)(8)(iii) of this section, the 
elimination of the requirement that the requested start date for the 
beneficiary be the first day for the applicable fiscal year in 
(h)(8)(iii)(A)(4), and the provisions governing the denial or 
revocation of H-1B petitions based on inaccurate, fraudulent, or 
misrepresented material facts in the H-1B petition, H-1B registration, 
temporary labor certification, or labor condition application in 
paragraphs (h)(10)(ii) and (iii) and (h)(11)(iii) of this section, 
respectively, published on February 2, 2024 be severable from one 
another. In the event that any of these provision(s) is held to be 
invalid or unenforceable by its terms, or as applied to any person or 
circumstance, it should be construed so as to continue to give the 
maximum effect to the provision(s) permitted by law, unless any such 
provision is held to be wholly invalid and unenforceable, in which 
event the provision(s) should be severed from the remainder of this 
section and the holding should not affect the remainder of this section 
or the application of the other provisions to persons not similarly 
situated or to dissimilar circumstances.
* * * * *
    (10) * * *
    (ii) Denial for statement of facts on the petition, H-1B 
registration, temporary labor certification, labor condition 
application, or invalid H-1B registration. The petition will be denied 
if it is determined that the statements on the petition, H-1B 
registration (if applicable), the application for a temporary labor 
certification, or the labor condition application, were inaccurate, 
fraudulent, or misrepresented a material fact, including if the 
attestations on the registration are determined to be false. An H-1B 
cap-subject petition also will be denied if it is not based on a valid 
registration submitted by the petitioner (or its designated 
representative), or a successor in interest, for the beneficiary named 
or identified in the petition.
    (iii) Notice of denial. The petitioner will be notified of the 
reasons for the denial and of the right to appeal the denial of the 
petition under 8 CFR part 103. There is no appeal from a decision to 
deny an extension of stay to the alien.
    (11) * * *
    (iii) * * *
    (A) * * *
    (2) The statement of facts contained in the petition, H-1B 
registration (if applicable), the application for a temporary labor 
certification, or the labor condition application, was not true and 
correct, inaccurate, fraudulent, or misrepresented a material fact, 
including if the attestations on the registration are determined to be 
false; or
* * * * *
    (5) The approval of the petition violated paragraph (h) of this 
section or involved gross error; or
    (6) The H-1B cap-subject petition was not based on a valid 
registration submitted by the petitioner (or its designated 
representative), or a successor in interest, for the beneficiary named 
or identified in the petition.
* * * * *

Alejandro N. Mayorkas,
Secretary, U.S. Department of Homeland Security.
[FR Doc. 2024-01770 Filed 1-30-24; 4:15 pm]
BILLING CODE 9111-97-P