H-1B Lottery Registration Tips for Employers

By: Accel Visa Attorneys, PC

January each year is always an exciting time for prospective foreign workers and U.S. employers because this is the time USCIS announces the H-1B lottery for the next fiscal year beginning October 1. It is a time where hopefuls look towards getting selected for one of the most popular U.S. work visa classifications, the H-1B. This year, the fourth annual H-1B lottery online (or electronic) registration ran from March 1 through March 20, 2023. On March 27, 2023, USCIS announced that it had completed the first round of electronic registrations selections for the 2024 fiscal year.

What Makes the H-1B so Popular?

Because of its dual-intent characteristic that allows holders to pursue lawful permanent residency while working in the U.S., the H-1B ranks as one of the most sought-after visa classifications by foreign workers and employers, particularly in the tech field. Other reasons for its popularity include:

• Flexibility with respect to employment portability allowing employees to transfer to new employer as soon as employer files the change of employer petition.
• It allows for part-time work.
• It allows for concurrent employment (working for multiple employers at the same time).
• Relatively lengthy initial period of stay (three years) and the option to extend to six years and beyond.
• Freedom, for those holding a valid visa stamp, to travel abroad even with a pending green card/adjustment of status petition.
• Open to employees from all the over the world, unencumbered by treaties between countries or previous work experience for a specific employer.

The Increasing Demand for H-1B Lottery Registrations

Because eligibility for the H-1B requires only a bachelor's degree (or its equivalent) and a job offer from a U.S. employer for a specialty occupation (that is, one that requires the application of a body of highly specialized knowledge) that meets the prevailing wage, the requirements are easier to fulfil than other visa classifications such as the E-2 (requiring substantial capital investment), E-3 (limited to Australian nationals), L-1 (requiring an executive or managerial position or specialized knowledge for a qualifying company abroad), O-1 (requiring extra-ordinarily ability or achievement), or TN (limited to citizens of Canada or Mexico). It is therefore unsurprising that each year, the number of online H-1B lottery registrations continues to grow as depicted on the chart, provided by USCIS, below.

The above chart and footnotes were provided by USCIS on April 28, 2023.

The Need for Reform of the H-1B Cap Program and Registration Process

Unless and until Congress increases the annual regular cap from the current 85,000 visas (20,000 of those available only for those with advanced degrees from an accredited U.S. university), the percentage of unselected candidates (including F-1 student interns) and employers, who are set to lose unique talent because their employees have run out of work options, will continue to increase.

As the chart above shows, the demand for H-1Bs continues to grow despite economic market conditions. As depicted by the chart, because USCIS allows one candidate to be sponsored by multiple prospective unrelated employers, the number of unique applicants are less than the total sum of the registrations.

The H-1B electronic registration program itself is not without controversy. Although a qualifying candidate may have multiple registrations from unrelated prospective employers, registrants are required to attest that the registration reflects a legitimate job offer and that there is no collusion between employers or affiliated companies to unfairly increase chances of selection for beneficiaries. However, there is no electronic system in place yet to prevent multiple registrations for candidates who may not have legitimate job offers at the time of registration. The issue of collusion has been highlighted in a recent article by the Wall Street Journal, where the publication notes that the Biden administration has found evidence that several dozen small technology companies colluded to increase chances of selection for prospective candidates. The publication notes that some 96,000 people submitted multiple visa entries for a total of over 408,000 entries (representing up to four registrations per candidate). While it remains to be seen whether USCIS’ proposed plans to increase the registration fee from $10 per registration to $215 in FY2025 will deter duplicate illegitimate applications, it is apparent that reform is required with respect to the H-1B electronic registration so that illegitimate applications are excluded from the selection. Additionally, USCIS may consider limiting registrations to one registration per candidate to increase transparency, equity, and preserve integrity of the registration and selection process.

How Employers Can Prepare for the Next Lottery?

With the popularity of the H-1B and because the online registration typically runs for only two-and-a-half weeks in March each year, barring any last-minute hires or potential hires, employers are encouraged to identify the foreign talent (here and abroad) that they would like to sponsor by the first two weeks of January, to allow enough time for document collection. There are many benefits to early preparation:

• Longer lead times to manage candidate and employee expectations.
• Greater efficiency in registration of multiple candidates at one time; rather than multiple candidates at different times.
• Reduces room for error and redundancies that waste time.
• Avoids getting caught up in technical delays from USCIS software glitches.
• Greater likelihood of proper registration, avoiding rejections or duplicate registrations.

Find out how Accel Visa Attorneys can help your organization prepare for the next H-1B lottery and explore alternatives to the H-1B visa. Schedule a consult with us!