Ask Sophie: What are the latest H-1B lottery updates?

Sophie Alcorn, attorney, author and founder of Alcorn Immigration Law in Silicon Valley, California, is an award-winning Certified Specialist Attorney in Immigration and Nationality Law by the State Bar Board of Legal Specialization. Sophie is passionate about transcending borders, expanding opportunity, and connecting the world by practicing compassionate, visionary, and expert immigration law. Connect with Sophie on LinkedIn and Twitter.

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Dear Sophie,

I’m the co-founder of a startup that has done H-1B transfers (including my own) but has not yet registered anyone in the H-1B lottery. This year, we want to register an F-1 student who has been working with us on OPT and a new engineer who is currently outside the U.S. I’ve heard there are changes to the lottery. Any insights you can share?

— Looking to the Lottery

Dear Looking,

It’s great to hear you’re registering potential new and existing employees in the H-1B lottery! As one of the few dual-intent work visas, the H-1B offers employers a valuable strategy to attract and retain top global talent in the United States. There are a myriad of recent updates: The lottery will now be “1 person, 1 chance,” there are new filing fees, forms, software updates, and more. Now is the time to talk to your immigration attorney to sponsor your team!

A main thing to keep in mind is that the filing fees for all visa and green card petitions, including the H-1B specialty occupation visa, will increase on April 1. The filing fee for the H-1B will increase from $460 to $780 for employers with 26 or more full-time employees. Also on April 1, the U.S. Citizenship and Immigration Services (USCIS) will issue a revised Form I-129 (Petition for a Nonimmigrant Worker), which must be used. Attend my upcoming February 9 free educational AMA webinar and read on for more.

First, let me explain what’s called the cap-subject H-1B process, aka lottery, which will accept submissions from 12 noon (ET) on March 6, 2024, through 12 noon (ET) on March 22, 2024.

Know the H-1B basics!

Every year, the number of H-1B visas available to companies was capped at 85,000. Of those, 65,000 are for individuals who have at least a bachelor’s degree, and the remainder are earmarked for those with a master’s or higher degree.

When the demand for H-1Bs exceeds the supply, which has been the case for the past decade, the USCIS holds a lottery to determine which cap-subject employers can apply for an H-1B on behalf of their candidate. In March, the USCIS begins accepting registrations for candidates in the annual H-1B lottery from employers or employer representatives. The fee to register each candidate is currently $10. By the end of March, the USCIS will select enough registrations to meet the annual 85,000 H-1B cap and notify employers whether their candidates have been selected.

Employers have from April 1 to June 30 to submit an H-1B petition to the USCIS, which must include a Labor Condition Application (LCA) approved by the U.S. Department of Labor. If the USCIS approves the petition, the earliest the H-1B beneficiary can begin working is October 1, which is the start of the next government fiscal year.

Occasionally, the USCIS will hold a second — or even a third — lottery selection round if it has not received enough H-1B petitions or the H-1B denial rate was higher than expected.

The USCIS can take nearly three months to adjudicate H-1B cases, depending on the service center, according to the USCIS Case Processing Times page. Premium processing is available for H-1B petitions, which guarantees the USCIS will either decide on the petition or issue a request for evidence within 15 days. The Premium Processing fee is $2,500, but it will increase to $2,805 on February 26.

Some employers qualify to petition for an H-1B visa at any time of the year without going through the lottery process. Called cap-exempt employers, they are not subject to the annual 85,000 H-1B cap and include colleges and universities, nonprofits tied to universities, nonprofit research organizations, and government research organizations.

For-profit employers that have H-1B candidates who were not selected in the lottery are increasingly pursuing cap-exempt H-1Bs for those candidates. If a for-profit employer can secure a part-time H-1B visa for its candidate through a cap-exempt employer, the for-profit employer can concurrently sponsor the individuals for an H-1B. Take a look at this previous Ask Sophie column for more details on cap-exempt H-1Bs.

H-1B process goes fully online

This month (February 2024), the USCIS launched what it calls Organizational Accounts for all H-1B lottery registration and filings, both cap and cap-exempt. These accounts will allow several individuals within an organization, such as an employer and lawyer, to collaborate on preparing H-1B registrations and filings and submit a completed H-1B petition — even with premium processing service — online to the USCIS. This is a great step forward to digitize and streamline the H-1B process, adding clarity to the process.

1 Person, 1 Chance

Last year, the USCIS received a whopping 758,994 eligible registrations for the lottery, and for the first time, more than half — nearly 408,900 — of the registrations were H-1B candidates who had more than one employer register them in the lottery. While multiple registrations from the same employer for the same H-1B candidate are automatically disqualified from the lottery, multiple registrations from different employers for an H-1B candidate are allowed — and many candidates pursue that to improve their chances of being selected. The USCIS is changing this.

Last week the U.S. Department of Homeland Security (DHS), which oversees the USCIS, issued a final rule that aims to level the playing field for all H-1B candidates. Candidates can continue to be registered by different employers. However, each unique H-1B candidate would be entered into the lottery only once regardless of how many employers registered them in the lottery. If an H-1B candidate is selected, each employer that registered the candidate would be eligible to file a petition on the candidate’s behalf, which effectively means the individual can choose which employer to work for.

Cap gap changes on temporary hold

Originally, changing the handling of multiple employer registrations was included along with extending cap gap, which impacts international students on F-1 visas who are changing to H-1B status, in a proposed rule DHS issued in January. However, only the change to multiple employer registrations made it into the final rule.

The proposed rule called for extending the cap gap to April 1, which is six months longer than the current October 1 date when individuals can officially start working on H-1B status. Cap gap enables F-1 students to continue living and working in the U.S. if they are selected in the H-1B lottery. Cap gap bridges when OPT (optional practical training) or STEM OPT work authorization is set to expire and when they get their H-1B visa. Extending cap gap to April 1 would enable employers to avoid paying for premium processing when filing an H-1B petition on behalf of an F-1 student.

It’s unclear whether this cap-gap extension will be finalized this year but another H-1B regulation might be forthcoming.

Craft a strong H-1B petition!

Have your attorney help register your company’s candidates in the lottery. If either is selected, your company will need to file a strong H-1B petition. I discuss some tips for submitting a strong H-1B here. That process begins with your lawyer submitting the LCA, which requires your startup to pay the H-1B beneficiary at least the prevailing wage based on the position and work location and ensure that the employment conditions won’t negatively affect American workers.

Employers don’t need to submit evidence to the Labor Department with the LCA. Still, they must post a copy of the H-1B notification, which can be done electronically; keep all supporting documents; and make them available for public viewing.

From there, your startup must fill out the latest version of Form I-129 (changing April 1, remember!) and include evidence and supporting documents.

In general, your attorney will be crafting a strong petition to:

• Demonstrate that a bachelor’s degree is required for the “specialty occupation” you are offering to the H-1B candidate and the candidate has the degree. If the position is in a STEM field, proving the need for a bachelor’s degree is often easy.
• Show the F-1 student has maintained their immigration status while here in the U.S., including all I-20s issued to students and any employment authorization document cards.
• Avoid mistakes and omissions.

Remember, always double-check your forms and documents, making sure the information contained in the LCA matches Form I-129 and everything is signed.

You’ve got this!
— Sophie

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