U.S. employers often leverage the skills of foreign national workers in occupations where the shortage of qualified U.S. workers is an ongoing decades-long issue. With a sponsoring employer, qualified foreign nationals can enter to work in the United States in H-1B nonimmigrant status for up to six (6) years, with the prospect of permanent residence sponsorship.
However, there are limitations to the H-1B program as put in place by the U.S. Congress. Only 65,000 new H-1B visa numbers are available for each new fiscal year (“FY”), with an additional 20,000 H-1B numbers for foreign nationals who have been awarded a U.S. Master’s Degree or higher.
Let’s take a closer look at this process.
What is the H-1B Lottery?
The H-1B visa lottery or “Registration” is the process by which the U.S Citizenship and Immigration Services (“USCIS”) division of the Department of Homeland Security (“DHS”) selects who may apply for an H-1B visa in any given fiscal year. The process appears straight-forward, but U.S. immigration law and regulations are very detailed and demanding—even minor “scrivener” errors can preclude successful registration of a candidate, and loss of that opportunity until the next FY. Even if a candidate’s name is selected in the H-1B registration and filing with USCIS is complete, an employer may risk loss of filing fees and a denial for the lack of a critical piece of evidence. The H-1B filing window is very narrow, and correcting such oversights may be unavailable to the uninitiated.
It is important to understand the requirements of this registration and filing process to provide you and your prospective employee the best chance for selection and approval of H-1B visa status.
Understanding the H-1B Lottery for Employees & Employers
In response to the overwhelming demand for H-1B visas and the burden on USCIS to intake, receipt, and select complete H-1B petitions, USCIS created an electronic registration process for the FY2020 H-1B visa cap. This “H-1B Registration” process permits filing skeletal registration profiles for employee candidates, and from that pool (which closes on a specific date each year), USCIS then selects candidates for whom complete H-1B petitions may be filed with the Immigration Service.
Selection in this registration does not guarantee an approved H-1B visa, but only permits the opportunity to file an H-1B petition. Available H-1B visa numbers not awarded due to denied cases, or registration winners who do not file in the time specified, are then distributed in successive registration selections until all available H-1B visa numbers are distributed. For FY2022 (H-1B visa numbers which activated on October 1, 2021), USCIS ultimately conducted three lotteries when the first two registration selections did not exhaust all ~85,000 H-1B visas for that fiscal year.
In order to create an H-1B registration profile, sponsoring employers must create an account on the USCIS website, to include a profile for each H-1B candidate. Multiple registrations by the same employer on behalf of the same candidate are not permitted, and all registrations will be rejected by USCIS as duplicative.
For those preparing for FY2023 H-1B visa numbers (registration period of March-April 2022, with approved H-1B visas activating on October 1, 2022), there are a few things that must be completed by sponsoring employers well in advance. For one, employers must ensure that an employer account has been timely created/updated on USCIS’ website. The second step is populating prospective H-1B candidate profiles when the registration window opens, ensuring no employees/prospective employees are overlooked. Many U.S. corporations employ F-1 college students working in post-graduation OPT or STEM OPT status—each should be included in the H-1B registration process if retaining these workers is desired. Approaching managers ASAP to ensure a complete list of H-1B candidates is both mission-critical and time sensitive—USCIS does not permit late registrations, and there is no latitude given employers for deficient registrations.
While USCIS has not yet announced instructions for the upcoming FY2023 H-1B lottery, it is essential to plan now and have all employer and employee documentation prepared well ahead of time. If you are not sure on how to proceed or what to provide USCIS, our team at Philip Levin & Associates, P.C. can assist.
If an H-1B candidate is selected in one of the registration lotteries, it is vital to have all H-1B petition paperwork and supporting documentation timely filed with USCIS. Failure to timely address all gating issues, including certification of the precursor LCA stage with U.S. Department of Labor, could mean a lost opportunity that cannot be remedied until the following FY.
Advanced Degree Exemption
There exist many nuances to U.S. immigration law, and with H-1B visas a yearly “advanced degree exemption” exists as described above. This exemption is in place for beneficiaries who have earned a U.S. Master’s degree or higher by the time of filing, and provides an additional 20,000 H-1B visa numbers annually.
However, even with approximately 85,000 new H-1B numbers issued each year, demand still far outstrips supply. For FY2022 there were 308,613 registrations filed by U.S. employers (27.5% selected). For FY2021 there were 274,237 (31% selected). Until Congress acts to increase the number H-1B visas available to these essential nonimmigrant workers, the current selection process will be the protocol sponsoring U.S. employers must adhere to in order to fill their employee ranks.
Help With H-1B Visas at Philip Levin & Associates, P.C.
If you or your employee needs assistance with an H-1B registration and/or petition filing, the dedicated team at Philip Levin & Associates can help. Our collective decades of experience in business immigration matters ensures that you or your employees will have the best opportunity for selection in the upcoming FY2023 H-1B lottery.
If you would like to learn more about how we can help you with the H-1B program, or just more information about the H-1B process in general, our team is more than happy to walk you through the process. Please take a moment to fill out our contact form. We look forward to hearing from you!
