It’s Almost Time for the H-1B Lottery Again! Will This Year’s Odds Be Better?

It is that time of the year again where U.S. employers consider which of their current or prospective employees should be registered towards the FY2024 H-1B lottery occurring in March 2023. This year’s H-1B cap process will be similar to that of the last 3 years, requiring 2 steps:

1. Online registration towards the annual lottery during the first few weeks of March 2023 (exact dates not announced by USCIS)
2. Submission of the H-1B application to USCIS if the registration is selected in the lottery during a 90-day filing window after April 1, 2023

What is the H-1B Visa?

The H-1B is the most common temporary work visa for foreign national professionals in the U.S. To apply, one must have a U.S. job offer in a “specialty occupation,” meaning that the position itself requires at least a Bachelor’s degree in specific and related specialty to perform the duties of the position. The qualified employee must have the requisite Bachelor’s degree, or its equivalent based on foreign education, experience, or a combination thereof.  If approved, the individual may be able to start working for the company in H-1B status as early as on October 1, 2023, but sometimes later if the application is still pending review. H-1B status is approved initially for a period of 3 years and can be extended for a total of 6 years, except in cases where the employer has started the employment-based permanent residence (green card) for the employee. In those case, the H-1B can be extended indefinitely while the individual waits for their green card.

What is the H-1B Lottery & How Will It Work This Year?

Congress has set a cap on the total number of new H-1Bs that may be issued each fiscal year. The cap provides for 65,000 H-1Bs for individuals with Bachelor’s degrees (the “regular cap”) and an additional 20,000 for those with U.S. Master’s degrees (the “U.S. master’s cap”), meaning individuals with U.S. Master’s degrees have a greater chance of getting the visa. The annual cap does not apply to H-1Bs filed by universities and certain non-profit research institutions, and those seeking H-1B extensions or who have previously been counted towards the H-1B cap in prior years.

In previous years, USCIS typically received more applications than the number of visas available (e.g., 483,000 in 2022, 308,000 in 2021, 275,000 in 2020, and 201,000 in 2019), therefore necessitating a lottery to determine which applicants received the visa. While it is impossible to predict, it seems both likely that the demand will still exceed the supply of 85,000 available visas, and that the odds of getting selected in the lottery this year will be better than last year on account of lay offs in various industries and a possible recession. Meaning, in periods of economic decline, fewer employers file H-1Bs and the decreased demand creates an increased supply for those who file.

Employers must submit an online registration for those employees it wishes to sponsor for an H-1B during a 2-week registration window in the first few weeks of March (exact dates not yet announced by USCIS). Thereafter, USCIS will conduct the lottery and will notify employers regarding which applicants were selected by March 31, 2023. Those who are selected will be given a window of 90-days during which time they must file a complete H-1B application with the USCIS.

For Whom Should You Consider Filing an H-1B?

We recommend considering an H-1B petition on behalf of the following types of employees and/or prospective employees:

• Any current/prospective employee who was not previously selected in an H-1B lottery
• F-1 students with OPT or CPT work authorization (including those eligible for a 24-month STEM extension) even if they are on their first year of OPT
• Prospective employees presently abroad
• Prospective employees currently working on an H-1B for a cap-exempt employer (ex. a university)
• Current/prospective employees in another status who are close to exceeding their eligible time in that status (e.g., TN, E-3, O-1, L-1, H-1B1, etc.)
• Current/prospective employees in a status that does not allow for immigrant intent, but for whom you may want to start the green card process in the future (e.g., TN, E-3, or H-1B1)
• Current/prospective employees working pursuant to H-4 (dependent spouse of H-1B) or L-2 (dependent spouse of L-1) or J-2 (dependent of J-1) Employment Authorization Document (EAD) so that their work authorization is not solely beholden to their spouse’s work authorization/status

In certain very limited circumstances, an employer may opt to file an H-1B on behalf of other employees, after first consulting with the immigration attorney:

• Current/prospective employees working pursuant to DACA (Deferred Action for Childhood Arrivals) Employment Authorization Document (EAD)
• Current/prospective employees working pursuant to TPS (Temporary Protected Status) Employment Authorization Document (EAD)
• Current/prospective employees working pursuant to U4U (Uniting for Ukraine) or similar parole for Venezuelans, Haitians, Cubans, Nicaraguans

IMPORTANT: Not all individuals with a Bachelor’s degree in a specialized field qualify for and can benefit from an H-1B and determining if any of the above categories of current/prospective employees would qualify for an H-1B is done by the attorney on a case-by-case basis.

What are the Next Steps?

We ask that our clients inform us of whom they wish to register as soon as possible, ideally by February 3, 2023. Minsky, McCormick & Hallagan, P.C. offers free consultations for companies seeking corporate immigration services. Please note that this free consultation only applies in cases where the employer initiates the request and participates in the consultation. If you would like us to evaluate whether your employee or candidate is eligible for the H-1B lottery this year, please schedule a complimentary corporate consultation with one of our experienced employment-based immigration attorneys.