The H-1B non-immigrant visa allows companies and other employers in the United States to temporarily employ foreign workers in occupations that require the theoretical and practical application of a body of highly specialized knowledge and a bachelor's degree or higher in the specific specialty or its equivalent. The U.S. Congress set the current annual regular cap for the H-1B category at 65,000 (commonly known as the "regular cap") or the advanced degree exemption. The advanced degree exemption is an exemption from the H-1B cap for beneficiaries who have earned a U.S. master's degree or higher and is available until the number of beneficiaries who are exempt on this basis exceeds 20,000.

In 2020, USCIS implemented an electronic registration process for the H-1B cap. Under this process, prospective petitioners (also known as registrants), and their authorized representatives, who seek to employ H-1B workers subject to the cap, complete a registration process. Only those with selected registrations in the lottery will be eligible to file H-1B cap-subject petitions. Since its inception, the H-1B CAP Registration process has been plagued with multiple registrations for the same beneficiary by multiple employers, even though they don't have a genuine job offer. Multiple registrations allow a Beneficiary to go at the lottery multiple times; therefore, the more registrations a beneficiary has, the better the chances of getting selected in the lottery. Accordingly, to counter this problem, In FY 2023 H1B CAP Registration, USCIS has started asking prospective petitioners to attest, under penalty of perjury, that all of the information contained in the submission is complete, true, and correct. The attestation that is required before submission indicates, "I further certify that this registration (or these registrations) reflects a legitimate job offer and that I, or the organization on whose behalf this registration (or these registrations) is being submitted, have not worked with, or agreed to work with, another registrant, petitioner, agent, or other individual or entity to submit a registration to unfairly increase chances of selection for the beneficiary or beneficiaries in this submission." 

Accordingly, if USCIS finds that this attestation was not true and correct (for example, that a company worked with another entity to submit multiple registrations for the same beneficiary to increase the chances of selection for that beneficiary unfairly), USCIS will find that registration not to be properly submitted. Since the registration was not properly submitted, the prospective petitioner would not be eligible to file a petition based on that registration in accordance with the regulatory language at 8 CFR 214.2(h)(8)(iii)(A)(1). USCIS may deny or revoke a petition based on a registration that contained a false attestation and was, therefore, not properly submitted. Furthermore, USCIS may also refer the individual or entity who submitted a false attestation to appropriate federal law enforcement agencies for investigation and further action as appropriate.

In light of the same, it has been reported by other Attorneys that USCIS has started issuing Notice of Intent to Deny (NOID) for the petitions where USCIS suspects a false attestation and that the registration was, therefore, not properly submitted. Thus, the petitioners who are unable to overcome NOID will end up losing the filing fees, the H1B petition getting denied or revoked, and getting reported to appropriate federal law enforcement agencies for investigation and further action as appropriate.  

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