Welcome To The H-1B Lottery!
Everyone who employs highly educated foreign professional workers knows that there has been some changes in the H-1B lottery program, but is entirely unsure what those are. Beginning in March, 2024, USCIS will again conduct a preregistration selection process for the H-1B lottery.
What Are H-1B Visas?
H-1B work visas are the most common work visas for foreign nationals in professional positions (which are jobs requiring at least a Bachelor’s degree). Immigration law caps the number of new H-1B’s issued each year by USCIS to 65,000 for those with a Bachelor’s degree, and an additional 20,000 to those who graduate with at least a Master’s degree from a US non-profit university. Some categories of H-1B’s are exempt from this cap (meaning they can apply for an H-1B anytime), including those: (1) transferring H-1B’s from one employer to another, (2) extending existing H-1B’s, (3) working for US colleges or universities, and (4) working for non-profit research organizations affiliate with a US College or University. Far more H-1B cap-subject applications are submitted each year then there are visas available. This means that USCIS must conduct a lottery every year to randomly choose which applications it will process.
Now is the Time to Start the H-1B Process
USCIS has not yet announced the Fiscal Year 2025 lottery, however, we expect USCIS to conduct the FY2025 Lottery in a similar way it was done for FY2024.
Employers will have to decide who they are sponsoring by March 2024.
Employers will have a specified three-week window in March 2024 to file an H-1B lottery registration through an online USCIS portal (My USCIS) for each foreign national they wish to sponsor. The USCIS will conduct a random lottery based on all the electronic registrations, and, those chosen in the lottery will be given at least 90 days to file their full H-1B petitions. Those not chosen will remain in the electronic lottery registration system, and, if additional H-1B spots become available, the USCIS will choose additional H-1B applications from that reserve.
The H-1B registration requests the employer’s: (1) name: (2) primary address, (3) FEIN, and (4) authorized signatory’s contact information. It will also state the foreign national’s: (1) name, (2) gender, (3) date of birth, (4) country of birth & citizenship, (5) passport number, and (6) whether s/he has at least a Master’s from a US institution. The application does not ask about the proposed job duties or work site location, and a Labor Condition Application does not need to be filed prior to the registration.
The USCIS also conducts the lottery to give a preference to those with at least a U.S. Master’s degree. We will also need to see if premium processing is available to the FY2025 selectees.
Last year USCIS charged $10 for each application, to be paid online through the pay.gov site. This fee is likely to increase for FY 2025. Please note, that if the USCIS determines that an employer has a pattern or practice of submitting multiple mini-applications, but then not following-up with filing full applications if chosen in the lottery, the employer may be fined and face civil & criminal penalties for fraud.
Regarding those registrants on an F-1 visa and using their OPT (optional practical training) to work, so long as their initial H-1B application was chosen, and their full H-1B application was filed prior to their OPT expiration date, their OPT work authorization will be automatically extended through September 30th (unless their H-1B is rejected, denied, revoked, or withdrawn prior to that date). Thus, to ensure that this OPT extension is activated in a timely manner, those in F-1 OPT status may want to file their full H-1Bs as soon as they are notified that they were chosen in the lottery (rather than using much of their 90-day filing window).
Foreign nationals must have their qualifying degree by the time they file the full application. Thus, a foreign national who is close to graduating with their Bachelor’s degree can file the registration, and then, if chosen in the lottery, take the full 90-day period to file the full H-1B application to allow time for the degree to be awarded. One note, however, the registration asks whether the foreign national has at least a US Master’s degree in the current tense. The USCIS may require those applying under the US Master’s cap to have their degrees by the time they file the actual application.
In the meantime, employers should start preparing their H-1B lottery lists now, given the impending March 2024 registration timeline.
The key point of these initial applications, however, is that an employer should NOT file for the lottery unless the employer is sure the application will be approved. For this reason, Kuck Baxter Immigration strongly recommends that ALL of the necessary documentation that WILL be required for the full H-1B be received, reviewed, and approved by us prior to filing for the lottery. It will be very hard to win the case of a selected lottery winner who cannot prove they are actually eligible for the H-1B. And, given the potential Request For Evidence, we have to anticipate what USCIS will ask for and provide it upfront with the filings. RFEs and subsequent denials benefit no one.
Who Should File?
By way of preparation, employers should take a look at their current employees working under the F-1 Optional Practical Training (OPT) program (even those with STEM extensions in place), who need to be transitioned to H-1B status after its conclusion, as well as those people it wishes to hire from abroad to work for them in the US in professional positions.
Contact our experienced business immigration attorneys at Kuck Baxter Immigration at 404.816.8611 with any questions you have about applying for an H-1B, or for any other immigration matter, or you schedule your consultation online here.
