USCIS Announces H-1B Lottery Registration Amid Recent Regulatory Changes to the H-1B Program

Key Points

• The H-1B lottery will open on March 7, 2025, and will close on March 24, 2025.
• The results of the H-1B lottery will be announced by March 31, 2025.
• The lottery registration fee will increase from $10 to $215 per registration.
• New H-1B Modernization Rules will apply to H-1B applicants, including higher scrutiny of employer compliance and extended protections for foreign students.

Introduction

On February 5, 2025, the United States Citizenship and Immigration Services (USCIS)  announced that the online H-1B lottery will take place from noon ET on March 7, 2025, until noon ET on March 24, 2025. USCIS expects to finalize H-1B lottery results by March 31, 2025. Lottery winners have 90 days starting on April 1, 2025, to file complete H-1B petitions. USCIS will follow the H-1B Electronic Registration Process, with notable changes outlined below.

H-1B Cap Lottery Process and Rules

The H-1B lottery will continue with the “beneficiary centric” selection process implemented last year, granting employees a single opportunity to win the lottery regardless of how many potential employers register them. If an employee is chosen, all employers who registered them will be notified and the employee will then choose which employer to continue their H-1B process with.

Although the employee does not need to prove their H-1B eligibility at the lottery stage, it is recommended to analyze each employee’s eligibility prior to the registration. Winning the lottery does not grant the employee any immigration status and their H-1B petition could later be denied, if they do not meet the education and skills requirements for the position offered to them.

New H-1B Regulations

On December 18, 2024, Department of Homeland Security (DHS) issued regulations that made several changes to the H-1B process. These new regulations focus on clarifying qualifying degrees; “bona fide” positions; situations involving third-party organizations; requirements for cap-exempt research organizations; rights of “beneficiary-owners”; and expanding some of USCIS’s powers for enforcing H-1B program compliance. These changes took effect on January 17, 2025.

• Degree must be “directly related” to position

As part of the new regulations, titled “H-1B Modernization Rule,” DHS clarified that the requirement that the employee’s degree be “directly related” to the offered position means that there must be a “logical connection” between the employee’s degree and the job duties of the H-1B position. If a position allows for a range of qualifying degrees, each of the qualifying degree fields must be directly related to those job duties.

• DHS to increase review of employer compliance

DHS has also codified a requirement that the employer have a “bona fide” work offer for the beneficiary in a specialty occupation, and a legal presence in the United States. This change granted USCIS additional powers to request contracts, work orders and related evidence documentation to verify a bona fide position and general legal compliance on the part of the employer. In response to public comments, DHS stated that these changes may help reduce unnecessary requests for evidence issued by USCIS after the H-1B petition is filed.

This rule has also clarified the term “controlling interest” for beneficiary-owners of the petitioning entity. These beneficiaries’ first two H-1B validity periods will be limited to 18 months.

• Students on F-1 OPT will be protected from breaks in employment

The new rule also extends the automatic extension of “cap-gap” protections for those in F-1 student status who have been selected in the lottery. Previously, the cap-gap protection extended work authorization for F-1 Optional Practical Training (OPT) holders only until October 1 of the year in which H-1B status was being requested. Under the changes in the H-1B Modernization Rule, the cap-gap protection has been extended to April 1 of the following fiscal year (i.e., until April 1, 2026, for F-1 OPT students entered in the March 2025 lottery), ensuring that work authorization is not disrupted while the H-1B petition is being adjudicated.

• Third-party placements will be scrutinized

This H-1B Modernization Rule has clarified that petitions for H-1B workers who will be assigned to a third-party organization must show that the work to be performed at the third party is a specialty occupation. In reviewing the petition for these applicants, USCIS will analyze the qualifications of the third party where the employee-beneficiary will work, not those of the employer petitioning for the employee.

• DHS augments its ability to conduct site visits

DHS has added specific regulations to codify its authority to conduct site visits during which it will inspect, evaluate, verify and perform compliance reviews to ensure that employers and employees are entitled to the benefits sought and are in compliance with regulatory requirements. The rule also codifies consequences of an employer’s failure to fully cooperate with these inspections.

• DHS will give deference to its own prior decisions

The H-1B Modernization Rule also codifies the deference policy which requires that USCIS give deference to prior nonimmigrant visa approvals granted by USCIS. This deference policy helped simplify the renewal process for current nonimmigrant visa holders because USCIS did not need to re-vet the prior approval unless there were material changes to the position. Under this policy, USCIS must give deference to extension requests for the same applicants with the same facts and circumstances, unless there was a material error in the prior approval, or a material change in the extension application.

Analysis and Expectations

Under the first Trump administration, a higher degree of scrutiny was paid to H-1B petitions, especially cap-subject petitions which are generally filed for recent graduates. We expect to see an increase in requests for evidence on the basis of specialty occupation, seeking additional evidence related to the applicant’s degree and the position’s job duties. We also expect to see increased scrutiny for petitions for third-party worksites. Codification of the deference policy under the H-1B Modernization rule should alleviate impact on current nonimmigrant visa holders and should make the H-1B extension process more predictable.

As for expectations for employer compliance enforcement, site visits for compliance purposes decreased during the Biden administration to approximately half of those performed during the last years of the first Trump administration. We expect to see these site visits increase again.

Recommendations

For employers (petitioners) – Carefully consider which workers you are interested in petitioning for. Get your candidates’ information to the Akin team as soon as possible for a smoother H-1B lottery season. Once this H-1B registration period closes on March 24, 2025, you will not have another opportunity to register H-1B beneficiaries in the lottery until March 2026.

For employees (beneficiaries) – Have your personal information (i.e., diplomas, transcripts, CV, passport, etc.) ready. Verify that your passport is valid for at least six months; if not, apply for a passport renewal. While your employer and their attorneys will primarily handle the H-1B registration and petition, these processes will ultimately depend on your cooperation and documentation.

Immigration law and policy lawyers at Akin are ready to assist you with H-1B lottery entries and subsequent H-1B petitions!