The US Citizenship and Immigration Services (USCIS) has been taking more notice of employers abusing the H-1B filing and registration system by registering the same employee multiple times.
Employers may register for the H-1B cap fiscal year 2023 online from March 1 until March 18. After this, the USCIS will conduct a lottery. The lottery is necessary due to the fact that the number of registrations the USCIS receives is above the annual quota of 85,000. It is important for employers to file their registrations during this period if they want to qualify for the lottery.
Employers also need to remember that when submitting their registration, the USCIS requires that they attest to the fact that the registration is for a legitimate job offer. The USCIS also requires that sponsoring employers attest that the company sponsoring the employee is not working with or agreeing to work with another petitioner, agent, individual, or registrant in an attempt to increase their chances of the beneficiary being selected. If an employer makes a false attestation, it would void their registration and bring possible legal action.
Last year a lawsuit was filed by 510 foreign nationals that challenged the fiscal 2022 H-1B selection process, which allows one individual to have multiple registrations filed for them, thus improving their chances of being selected in the lottery. The lawsuit claimed that the current rules and regulations for cap registration allow foreign nationals to have an unlimited number of registrations submitted for them by multiple employers. It also claimed that this led to ‘H-1B consultancies’ and phony employers taking advantage of the rules by charging potential employees for filing multiple registrations for them even when no job offer from a qualified employee existed.
However, the lawsuit was not decided in favor of the plaintiffs. The court stated that the new rules were not ultra vires due to the fact that they don’t conflict with the Immigration and Nationality Act. Also, according to Justice Trevor N. McFadden, “Nor are they arbitrary and capricious because the Department of Homeland Security met its burden in responding to public comments.”
This lawsuit did, however, lead to changes that now require sponsoring employees to attest that there is a legitimate job offer and that they are not working with someone else in order to help one individual get multiple registrations. There could also be additional regulations forthcoming.
For those employers who are considering hiring a foreign national worker. It is important to keep in mind that there is a considerable amount of paperwork involved. One requirement is the I-9 Form which, for these workers, can become quite complex. The best way to handle this is to incorporate an electronic I-9 management tool into your hiring process. This will help ensure that documents are properly filled out and stored securely for review whenever they are needed.
Our innovative I-9 Compliance tool will save you time and effort by quickly verifying your employment eligibility verification automatically.