Blog

22 Sep 2023

New Rules for H1B Cap Season: What YouNeed to Know

The annual H1B cap season brings a wave of uncertainty for companies and professionals each year. But
this time, there are some significant changes to know about well in advance. USCIS has implemented
reforms that rework the lottery process, continue the suspension of premium filing, and take a tougher
stance on various fronts. In this section, we will outline the specific reforms and what they mean.
Understanding these new rules is crucial for effectively planning and applying during the next filing
period. So, let's explore exactly what is new and how these changes may impact your H1B strategy.

USCIS Overhauls Lottery Proces

In a significant change for the upcoming H1B cap season, USCIS has announced plans to overhaul the
lottery process that determines whether applicants are selected in the annual H1B visa lottery.
Traditionally, USCIS would randomly select H1B petitions from the huge influx of submissions and either
accept them into the 65,000 regular cap or the 20,000 advanced degree exemption. However, this
resulted in no way to predict one's chances or even know if the same applicant may be selected year
after year.
Now, USCIS will implement a new electronic registration system for H1B petitions for the 2024 cap
season. Applicants will submit an online registration along with their fee, but without a full application.
USCIS will then randomly select registrations and invite the corresponding applicants to fully submit
their petition with supporting documents. This allows USCIS to better manage the workload and provide
a more orderly process. Selected registrants will have 90 days to submit their full application.
While the new system won't increase the annual caps, it aims to introduce more fairness, transparency,
and ease of use compared to the old lottery. It also gives applicants a better sense of their odds through
the initial registration selection versus the complete uncertainty under the old system. Overall, the
changes seem focused on modernizing the intake process for the immense volume of H1B applications
each cap season.

Premium Processing Suspension Continues

In addition to the changes in the lottery system, USCIS has opted to continue the suspension of Premium
Processing for H1B cap-subject petitions through FY2024. Premium Processing allows petitioners to pay
an extra $1500 fee to have their case adjudicated within 14 calendar days. This expedited review is
useful for time-sensitive transfers or start dates.
However, USCIS has kept Premium Processing suspended since March 2020 due to the immense
backlogs caused by the pandemic. With hundreds of thousands of H1B petitions annually, resuming
Premium would only divert limited resources away from other case types. By keeping it suspended for
cap-subject H1Bs through next fiscal year, USCIS aims to whittle down pending petitions as much as
possible prior to the next cap season.
While inconvenient for some employers and transfers with pressing start dates, the suspension helps
ensure a more balanced workload across case types. It prevents the backlog from growing even larger,
though processing is expected to remain slower than usual in the near future even without Premium

Processing. As the situation stabilizes, USCIS may re-introduce this service, but for now the suspension
avoids adding further strain on limited resources processing huge cap application volumes each April.

Enhanced Document Request Pre-Adjudication

Another notable change is that USCIS may begin issuing enhanced requests for additional evidence or
documentation prior to final adjudication of H1B petitions. Previously, at testimonial events and in
formal policy guidance, USCIS indicated it planned to rely more heavily on Request for Evidence (RFE)
notices to obtain missing or unclear information before rendering a decision on a case. Now as
adjudications ramp up, USCIS will likely follow through with greater use of pre-adjudication RFEs
specifically for H1B cap-subject petitions. The goal is to reduce approval of deficient filings and have a
more comprehensive application package upon initial review.
If extra details or documentation are needed, petitioners will receive the RFE notice and have a standard
90-day response period to comply. While this adds processing time, it aims to avoid unnecessary denials
and Requests for Reconsideration further down the line. By flagging issues early and giving petitioners a
chance to address them pre-decision, USCIS hopes cases will be better supported when finally
adjudicated. This should help both the agency and petitioners by making the first decision as
comprehensive as possible.
Tougher Occupational Requirements
In continuing efforts to reform the H1B program, USCIS will be taking a more rigorous approach to
verifying that an applicant's intended occupation matches the degree requirement or its equivalence. In
the past, some petitioners took advantage of loosely interpreting the rules to qualify candidates who
may not have fully met the standard definition of a "specialty occupation." To curtail this, USCIS will
more closely examine if the proffered position truly requires the attainment of at least a U.S. bachelor's
degree in a specific specialty.
USCIS officers will also consider if a degree requirement is more of a preferred qualification rather than
a fundamental requirement of the job based on industry standards. This applies to both the initial job
offered as well as any future positions the candidate may hold under the same petition for extension of
stay. The goal is to ensure such jobs are genuinely complex and specialized enough too typically require
at least a bachelor's level education as Congress envisioned. By taking a tougher stance, USCIS aims to
curb any misuse while strengthening overall program integrity.
Increased Site Visits and Fraud Investigations
Beyond petition adjudications, USCIS has significantly ramped up site visits to H1B employer locations as
well as targeted fraud investigations in recent years. The agency will likely maintain a strong focus in
these areas going forward. Officers regularly visit employer worksites listed for H1B employees to verify
that legitimate job duties match what was documented in the application. They check if positions and
people exist as described.
Officers may also choose to inspect I-9 Employment Eligibility Verification forms while on site.
Unscheduled visits help ensure compliance and identify discrepancies. Separately, USCIS has formed a
new division focused specifically on detecting and investigating H-1B visa fraud and related schemes.
This includes probes into job orchestration scams, bench delays, and other non-compliance that
undermine the integrity of the program.

Employers sponsoring large numbers of H-1B workers can expect heightened scrutiny. The message is
clear – any instances of abuse, misrepresentation or illegitimacy will likely face serious repercussions
involving penalties, bans or even potential criminal charges. By devoting more energy to compliance
verification and fraud detection both during and after the adjudication phase, USCIS aims to safeguard
the H-1B program’s credibility.
Conclusion
In summary, the upcoming H1B cap season features major revisions to longstanding policies and
processes. The adjustments signal USCIS's intention to firmly enforce compliance while modernizing
intake procedures. With greater scrutiny of petitions and compliance expected across various stages,
those relying on H1B visas must be diligent. While the reforms add complexity, successful petitioners
who take time to understand and address each element fully will be better positioned. Overall, the
changes reinforce that pursuing H1B status demands thorough preparation according to rising agency
standards. Staying up to date on policy developments is key to navigating future cap application cycles
smoothly.