For employers seeking to hire or retain skilled foreign professionals in specialty occupations (occupations for which a degree is required), helping to get H-1B status for the foreign national is often a key tool.
However, there are only 85,000 total new H-1B’s available each year (65,000 per year generally, with an extra 20,000 for individuals with an advanced degree). Demand is typically much higher than the number of new H-1B’s available, resulting in a random selection process run by the U.S. Citizenship and Immigration Services (USCIS). The H-1B lottery, as it is called, takes place in March for the government’s fiscal year that starts Oct. 1. Thus, employers need to act now if they hope to obtain one of the 85,000 new H-1B spots that will be available starting Oct. 1, 2022 (the start of the government’s 2023 fiscal year).
H-1B status often serves as a bridge between foreign student status and permanent residency. H-1B status allows a foreign national who works in a specialty occupation to live and work in the United States for up to six years. In addition, individuals in H-1B status are free to seek permanent residency while in H-1B status, something that is not generally allowed for individuals in foreign student or other temporary work statuses. Therefore, individuals in other nonimmigrant statuses, such as TN or E-3, may be seeking to move into H-1B status to facilitate a later move to permanent resident status.
For many years, employers who wanted to obtain a cap-subject lottery spot were required to complete full H-1B petitions and submit them during the first five business days of April. If more petitions were filed during that period than H-1B spots available, USCIS would hold a lottery in April to decide which petitions would be reviewed. This resulted in many employers spending money on attorneys’ fees for petitions that were never even considered by USCIS.
Starting in 2020, a new registration system was put in place. Under the new system, employers are given a period of time in March to register workers who they would like to have considered for H-1B status starting in October. If more individuals are registered in the lottery than there are H-1B spots available, then a lottery will be conducted. Only those selected in the lottery are allowed to move forward with completing a full H-1B petition packet to seek H-1B status. This year, the registration period starts at 11 a.m. Central on March 1 and ends at 11 Central on March 18.
Individuals must be registered before the cut-off time on March 18 to be considered for H-1B status if a lottery is held. It is expected that a lottery will be needed this year, as the trend has been for the number of H-1B registrations to greatly exceed the number of H-1B spots available. In 2020, the registration period yielded 275,000 registrations. In 2021, that number increased to 308,613 registrations.
If an individual is selected in the lottery, the employer will then have 90 days to submit a petition for H-1B status to USCIS.
* This article first appeared in The Journal Record on March 4, 2022, and is reproduced with permission from the publisher.