The Department of Homeland Security (DHS) has proposed a final regulation to that is expected to implement at least some of the provisions contained in the US Citizenship and Immigration Services ("USCIS") USCIS H1B Modernization Effort, which was released in October. The proposal has just cleared the federal review process with the Office of Management and Budget, which began its review two weeks ago. The Department of Homeland Security has indicated that the agency may finalize and implement its USCIS H1B Modernization Effort in several steps. We anticipate that the agency will publish more than one rules to complete this process.

Some of these provisions will likely take effect before the H1B cap lottery registration process takes places in March 2024. This registration process requires employers to register prospective H1B employees for selection in the H1B cap lottery. If selected in the H1B cap lottery in March or April of 2024, the employer can file for an H1B visa for that employee, which can start as early as October 1, 2024. 

The details about these new rules will only become available once it is published in the Federal Register and implemented by the USCIS agency. USCIS has said that the intention of these rules is to prevent misuse and fraud in the H1B cap registration system. We anticipate that the final rule will include a switch to a beneficiary-centric rather than registration-centric H-1B cap selection system. This means that each beneficiary of an H1B cap registration lottery will have an equal chance to be selected. In past years, beneficiaries could get more chances to be selected if multiple companies registered them in the cap lottery. We also expect the rule to contain other anti-fraud provisions to improve the ability of USCIS to invalidate registrations, or to deny or revoke H1B petitions that do not comply with the new rules.

The public could comment on these proposed H1B modernization rules between the end of October to the end of December 2023. It is possible that the final rule could be modified from the proposed rule, responding to public comments.