Finally there’s a bit of good news for employers relying on H-1B visas. The H-1B cap lottery will take place in March/April 2020, and employers may register electronically in advance for a small fee to find out if they are successful, without going through the time and expense of preparing an H-1B petition.
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What Are H-1B Visas?
H-1B visas are the basic visa option for professionals under U.S. immigration law. They are for positions that qualify as “specialty occupations,” defined to include only jobs requiring at least a bachelor’s degree in a specific type of field, or equivalent specific vocational preparation, as a minimum qualification.
It’s not always a slam dunk to prove a position requires at least a bachelor’s degree or equivalent combination of education and experience in a particular type of field, but for many professional positions, H-1Bs are a great option. And for positions that require a master’s degree or a PhD as a minimum qualification, the visas can be a slam dunk.
But There Aren’t Enough H-1Bs Every Year
U.S. law imposes an annual limit of 85,000 H-1Bs—20,000 of which are reserved for employees holding an advanced degree from a U.S. institution. This is woefully inadequate in light of the demand for H-1Bs in the U.S. economy.
Certain types of employers are exempt from the H-1B cap and may apply for H-1B approvals any time: colleges and universities, nonprofits closely affiliated with a college or university, nonprofit research organizations, and government research organizations. All other employers are subject to the annual cap on H-1Bs.
So each year, U.S. Citizenship and Immigration Services (USCIS) conducts a random selection lottery process (referred to as the “H-1B cap lottery”) in early April to allocate the 85,000 H-1Bs for the federal fiscal year starting on the following October 1. In recent years, USCIS has received about 200,000 petitions for the 85,000 available H-1Bs, so each petition had less than a 50% chance of success in the H-1B cap lottery.
In past years, employers had to prepare and file a complete H-1B petition in the cap lottery just to find out if they were eligible to receive an H-1B under the cap for that year. H-1Bs involve substantial legal fees to prepare or require significant in-house staffing and expertise, so employers generally use them only for hard-to-fill positions or when an international candidate is by far the best available. Routine hiring doesn’t necessarily warrant the additional cost and effort of an H-1B.
But it has always been frustrating for employers to prepare and file the H-1B, only to find out they aren’t successful in the cap lottery. If the case is rejected in the lottery, the USCIS filing fees are refunded, but the attorneys’ fees or in-house administrative resources required to prepare the case are not.
Advance Registration for Lottery Is Improvement
This year, employers will be able to register electronically for the H-1B cap lottery for a nominal fee of $10. The random-selection lottery will be performed on the electronic registrations. Only the cases that are successful in the cap lottery will need to be prepared and submitted to USCIS as complete H-1B petitions with supporting documentation. This should be a great improvement for employers.
But the Devil Is in the Details
The electronic registration closes on March 20, and then USCIS has to run the random selection and notify the successful employers. The USCIS intends to notify winners of their selection in the lottery on or by March 31st. Cases that are successful in the cap lottery will be assigned a time period in which to file the corresponding H-1B petition.
How to Register
Registration works like this: The employer must create an employer account and enter employer information in the USCIS system. If the employer is preparing H-1Bs in-house, the employer must complete the process by noon on March 20 by submitting the registration and paying the $10 registration fee at Pay.gov.
If the employer is working with outside immigration counsel, the attorney has to create a separate attorney account, and the employer and attorney accounts have to link-up in the USCIS system before the attorney can submit the client’s pre-registration(s) and pay the fee.
When we create our attorney account, a one-time use passcode will be generated for each employer/client’s H-1B(s). The attorney will send the client the passcode for the client to enter in the employer account, to link the employer’s H-1B(s) to the attorney account. At that point the attorney will be authorized to enter detailed information about the sponsored employee or candidate into the USCIS system on behalf of the employer, to register each potential H-1B case in the cap lottery process.
We recommend starting to enter your employer information as soon as you can, so you have time to work through any questions or issues that arise in the new system. Past experience with USCIS online systems suggests there are many ways this registration could be difficult to accomplish by the deadline of *noon* on March 20.
It’s an entirely new system and even USCIS says “there’s more work to do” to perfect the system. So you should start the process on your end ASAP to maximize the likelihood that your H-1B(s) will be registered by the deadline of *noon* on March 20. If you’re working with outside immigration counsel, the attorneys can help you if you have any questions or concerns.
Each candidate for H-1B employment must be registered separately, for a USCIS fee of $10 each. Each case that is selected in the H-1B cap lottery is unique to the selected candidate and can’t be transferred to another candidate who was entered in the lottery. So if an employer registers multiple candidates, there is no way to control which candidates will be eligible for H-1B sponsorship as a result of the random selection process.
If one or more of your cases are successful in the H-1B cap lottery, then the full cost and effort of the H-1Bs will be involved for those particular cases to move forward. At least in theory, this is a great improvement over past years because employers don’t have to incur the cost and administrative burden of H-1Bs that aren’t successful in the lottery. We’re hopeful the registration process will be reasonably smooth, so it feels like an actual improvement for employers.
Next Steps
To proceed with an H-1B registration, you need to gather the following items as soon as possible:
- Copy of the H-1B candidate’s passport (all pages with stamps or notes).
- Copies of the H-1B candidate’s degree certificates and transcripts (preferably both)
- Job title and job description for the position
- The full name and title of the person who is the authorized signatory for the employer who will set up the employer’s account for the H-1B cap lottery.
This is all you need for the H-1B registration process, along with the fee of $10 per registration. If your H-1B cases are successful in the lottery, then you will proceed with the full process to prepare the H-1B petition.
Bottom Line
At this point it seems the biggest mistake employers can make is to wait until the last minute to work on the H-1B cap lottery registrations, experience difficulty navigating the new USCIS system, and miss the deadline of *noon* on March 20 to complete the registration process. We strongly recommend starting to work on registrations right away.
Leigh Cole is an attorney with Dinse P.C. in Burlington, Vermont. She can be reached at lcole@dinse.com.