USCIS Announces H-1B Cap Has Been Reached for Fiscal Year 2024

At a Glance

• Unlike in FY2023, a third round of the lottery was not necessary in FY2024 to meet the congressionally mandated H-1B numbers. This may be an indication that USCIS is fine-tuning its process to ensure it selects enough registrations in early rounds to minimize the need to run subsequent lotteries, making it unlikely that a third round of the lottery will take place in future fiscal years.
• The Department of Homeland Security published a Notice of Proposed Rulemaking in the Federal Register on October 23, 2023, for a 60-day comment period, proposing to reduce or limit the number of registrations that can be submitted for the same beneficiary, amongst other measures aimed at strengthening the integrity of the H-1B selection process. Eliminating bad actors and leveling the field for all registrants is likely to go a long way in increasing the overall selection rate for all registrants.
• Remember that these H-1B petitions are not subject to the cap: (1) change of employer, extension and amendment petitions for individuals already working in H-1B status with a cap-subject employer; (2) petitions filed by institutions of higher education and their related nonprofits; and (3) petitions for J-1 physicians who receive a waiver of the two-year home residence requirements.

On December 13, 2023, U.S. Citizenship and Immigration Services (USCIS) announced that it had received enough petitions to meet the annual numerical allocation of 85,000 H-1B visas for fiscal year 2024 (FY2024), which includes 65,000 regular and 20,000 U.S. advanced degree (U.S. master’s degree) cap petitions. 

USCIS will upload electronic non-selection notices for each unsuccessful entry to the myUSCIS account of employers or their representatives, and update the status of registrations from Submitted to Not Selected in the coming days. Registrants who are not selected in the lottery do not need to disclose the attempt in future immigration filings, including on Form I-129, “Petition for a Nonimmigrant Worker.” However, it is important for employers or their representatives to download and save non-selection notices for record-keeping purposes, as the notices will become inaccessible if access to the myUSCIS account used for the registration is lost in the future. 

Unfortunately, the announcement serves as confirmation of the low FY2024 selection rate of slightly above 26%, due primarily to the significant increase of multiple eligible registrations for the same beneficiaries (i.e., 408,891 registrations were for beneficiaries with multiple eligible registrations compared to just 350,103 for single-entry registrants).

Preliminary Predictions for FY2025

USCIS previously announced that it had received 758,994 registrations eligible for inclusion in the FY2024 lottery, and selected a combined 188,400 registrations during the first and second rounds of lotteries that took place in March 2023 and July 2023, respectively. Unlike in FY2023, a third round of the lottery was not necessary in FY2024 to meet the congressionally mandated H-1B numbers. This may be an indication that USCIS is fine-tuning its process to ensure it selects enough registrations in early rounds to minimize the need to run subsequent lotteries, making it unlikely that a third round of the lottery will take place in future fiscal years. 

The next period during which registrants will be allowed to submit H-1B cap registrations is expected to be in the first couple of weeks of March 2024 for an October 1, 2024, (FY2025) employment start date for successful registrants. The registration process is likely to be very similar to that of FY2024, unless USCIS decides to limit eligible registrations to one entry per beneficiary. Regardless of the registration process used, we predict registrants will have a slightly better chance of being selected in the FY2025 lottery compared to FY2024. 

We base our predictions on: (1) USCIS’s increased investigation and prosecution of registrants who are suspected of having gained an unfair advantage in the lottery process by submitting multiple registrations for the same beneficiaries through related entities or for nonexistent positions; and (2) the Notice of Proposed Rulemaking (NPRM) published in the Federal Register by the Department of Homeland Security on October 23, 2023, for a 60-day comment period, proposing to reduce or limit the number of registrations that can be submitted for the same beneficiary, amongst other measures aimed at strengthening the integrity of the H-1B selection process. Eliminating bad actors and leveling the field for all registrants is likely to go a long way in increasing the overall selection rate for all registrants.

We are closely monitoring developments in the H-1B cap lottery process and will publish an updated alert ahead of the FY2025 lottery period. 

Not All H-1B Cases Are Subject to the Cap Lottery

As an important reminder, not all H-1B cases are subject to the cap lottery. Only private (cap-subject) employers seeking to file new employment H-1B petitions or change of employer petitions from a cap-exempt entity (such as an institution of higher education) are required to submit registrations in the lottery process. The following H-1B petitions are not currently subject to the cap: (1) change of employer, extension and amendment petitions for individuals already working in H-1B status with a cap-subject employer; (2) petitions filed by institutions of higher education and nonprofit organizations that are related to such institutions; and (3) petitions for J-1 physicians who receive a waiver of the two-year home residence requirements.