By Christine Fabin, Murty Gollakota, and Kelli Meilink
This spring, it was widely reported by multiple national news outlets that the U.S. government is investigating alleged collusion by some companies to “increase the chances that their prospective foreign hires will win a coveted H-1B visa for skilled foreign workers in this year’s [visa] lottery,” as the Wall Street Journal put it.
On April 28, 2023, U.S. Citizenship and Immigration Services (USCIS) announced the registration and selection numbers for the FY 2024 H-1B cap registration period. Each year, USCIS issues 85,000 new H-1B visas, of which 25,000 are allocated for graduates with a U.S. Master’s degree. For FY 2024, total registrations increased by 62% from last year’s record-breaking registration totals (780,884 versus 483,927). Of significant note is the number of applicants who submitted multiple registrations based on “job offers” from multiple employers, which increased dramatically from last year—408,891 FY 2024 versus 165,180 FY 2023. While a company can file only one registration per applicant, multiple companies can file a registration for a single applicant. This spike in multiple registrations for a single applicant has raised concern with USCIS.
According to the American Immigration Lawyers Association (AILA), the reason for multiple registrations for a single applicant may be the result of a highly competitive job market where multiple employers are making bona fide job offers to the same applicant, or that companies are allegedly being created for the purpose of filing multiple registrations for a single applicant to bolster that applicant’s chances of selection. What is being targeted by government investigators is the latter alleged practice.
On its face the practice is not illegal per se; however, part and parcel of a company submitting an H-1B registration is an attestation, under penalty for perjury, that the company has a legitimate job for the applicant and that neither the applicant nor the company has worked with another person or entity to unfairly increase the chances of selection for the applicant. According to a Wall Street Journal article, there is evidence that “several dozen small technology companies have colluded to increase the chances” that their applicants will be selected.
As a result, USCIS is undertaking fraud investigations and have referred several companies to federal law-enforcement agencies for potential criminal prosecution. With the increase in likely fraud and abuse of the H-1B registration system this year, the government is taking measures to ensure fraudulent registrations are removed from the system and companies are held accountable. For the long term, immigration practitioners, including AILA, are urging the government to review the system and make critical changes to mitigate future fraud.
Christine Fabin, Murty Gollakota, and Kelli Meilink are attorneys at Husch Blackwell LLP and are members of the firm’s Business Immigration and Global Mobility practice group.