As the page is turned on the first month of 2024, there are a number of updates in the immigration space. Although treatises could theoretically be written on such updates and considerations going forward, this article focuses on updates, reminders, and new information related to the H-1B, H-2A, and H-2B nonimmigrant visa categories.

H-1B

The H-1B lottery registration for the government’s 2025 Fiscal Year (i.e., for H-1B status to be effective on October 1, 2024) will be open from March 6 to March 22, 2024. This is the fifth year of the USCIS’ use of the “registration” process for the H-1B lottery. The H-1B nonimmigrant visa category is for “professional” positions (i.e., positions that are properly classified within an occupation that generally requires at least a bachelor’s degree in one or more related fields in order for an individual to be qualified to fill the position). Prospective petitioners seeking to file H-1B cap-subject petitions for the H-1B lottery, including for beneficiaries eligible for the advanced degree exemption, must first electronically register and then pay the associated H-1B registration fee for each beneficiary. The electronic registration process dramatically streamlines processing by reducing paperwork and data exchange, and provides overall cost savings to employers seeking to file H-1B cap-subject petitions.

Under this process, prospective petitioners (also known as registrants), and their authorized representatives, who are seeking authorization to employ H-1B workers subject to the cap, will complete a registration process that requires only basic information about the prospective petitioner and each requested worker as well as payment of a registration fee. The H-1B random selection process, if needed, will then be run on properly submitted electronic registrations. Only those with selected registrations will be eligible to file H-1B cap-subject petitions.

In response to the increasing volume of registrants in the H-1B lottery, and in an effort to avoid duplicative registrations and attempts to “beat the system”, USCIS is implementing regulatory changes to make the lottery process “beneficiary centric” beginning this year. These changes will ensure that each unique beneficiary is only counted for one “registration” and that each beneficiary will have an equitable chance of being selected in the lottery.

Employers who are interested in sponsoring foreign national workers for one of the highly sought after “new” H-1B nonimmigrant visas will want to work with counsel to review the cases, prepare, and timely submit the registrations in the online lottery process.

H-2B

During the Department of Labor’s January 2 – January 4 filing window for H-2B visa applications for work to commence on April 1, 2024, the Department of Labor received 8,817 H-2B applications covering 138,847 worker positions. This volume continues the trend from recent years where the demand for H-2B visas far surpasses the Congressionally allotted supply of 33,000 “regular cap” visas for this half of the government’s fiscal year. The H-2B nonimmigrant visa category is for temporary, non-agricultural work.

Fortunately, the Department of Labor and the Department of Homeland Security have already agreed to various rounds of “expansion caps” to permit the issuance of additional H-2B visas. These extra allotments applicable to start dates of need on April 1, 2024 or after are generally summarized as follows:

Our office is also exploring additional options to consider for clients whose H-2B application(s) was not placed in as high of a grouping as desired in the Department of Labor’s random process and thus even the above expansion cap options may be uncertain. One such option includes working toward a filing for a portion of the “first half” of the government’s fiscal year when there is less pressure on visa availability for purposes of hopefully making the process easier in the following year.

H-2A

Unlike the H-1B and H-2B programs, the H-2A program is uncapped. As such, for employers whose need for temproary workers falls under either the primary or secondary definition of “agriculture” pursuant to applicable regulations, this is an option to explore. There are no material changes to the H-2A program that are “new” for 2024, but some of the changes implemented by regulations in 2023 are coming to roost with the 2024 seasonal filings. As but one example, the Department of Labor has materially changed the wage structure for H-2A workers in the event it is determined by the agency that the proposed duties fall outside of the one the five “traditional” agricultural occupational categories. This nuance has created headaches for certain farming operations that employ workers in duties that include driving large semi-tractor / trailer trucks.

If you have questions about the H-1B, H-2B, or H-2A visa programs or other general questions about employment-based immigration, please contact one of the immigration specialists in Koley Jessen’s Employment Group.

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