It’s Time for the H-1B Lottery & New Rule Promises to Improve Odds of Selection This Year!

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 FY2025 H-1B lottery occurring in March 2024. Unlike previous years, USCIS just announced a new beneficiary centric selection process, which will reduce “the potential for gaming the registration system and ensure each beneficiary would have the same chance of being selected, regardless of the number of registrations submitted on their behalf.” On account of this new rule, the odds of selection this year are expected to be better than the last few years.

This year’s H-1B cap process will involve the following steps:

1. Employers register individuals towards the annual lottery between 12pm EST on March 6, 2024 and 12pm EST March 22, 2024.
2. USCIS announces the winners of the lottery at the end of March 2024 (exact date not known).
3. Submission of the H-1B application to USCIS if the registration is selected in the lottery during a 90-day filing window after March 31, 2024.

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, 2024, 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 cases, 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 sets 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., 780,000 in 2023, 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. As was widely reported, the significant increase in H-1B registrations and the dismal rate of selection last year were largely on account of fraudulent duplicate registrations, which accounted for more than half of all registrations in 2023.

Fortunately, USCIS responded to this rampant fraud by issuing new regulations which will ensure that each individual registered is only counted ONCE in the lottery. While it is expected that the agency will again receive more registrations than available visas, thus necessitating a lottery, the odds of being selected is expected to be better than in the last the last few years.

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 (e.g., a university)
• Current/prospective employees in another status who are close to exceeding their eligible time in that status (e.g., 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, J-1, etc.)
• 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 qualify for and can benefit from an H-1B and determining if any of the above categories of current/prospective employees qualify for an H-1B is done by the attorney on a case-by-case basis.

What are the Next Steps?

Please contact an attorney at Minsky, McCormick & Hallagan, P.C. if you need assistance with this year’s H-1B lottery. We offer 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.