Dear Sophie: Will the H-1B lottery be based on the highest wages?

Here’s another edition of “Dear Sophie,” the advice column that answers immigration-related questions about working at technology companies.

“Your questions are vital to the spread of knowledge that allows people all over the world to rise above borders and pursue their dreams,” says Sophie Alcorn, a Silicon Valley immigration attorney. “Whether you’re in people ops, a founder or seeking a job in Silicon Valley, I would love to answer your questions in my next column.”

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Dear Sophie,

I graduated in December, and I’m currently working on OPT for an early-stage biotech startup. I’m not sure how much my employer knows about the H-1B lottery process or if they are planning to put me in the lottery.

I heard that the next lottery will not select H-1B candidates based on the highest salaries paid. What else should I know?

— Gifted Grad

Dear Gifted,

It’s great that you’re thinking ahead to the lottery! I recently chatted about the future of immigration, including work, climate change and more with futurist and inventor of the BANI Framework Jamais Cascio. This podcast sheds some light on the context of the global high-skilled immigration and future trends affecting the global labor market for the U.S. specifically.

For H-1B and other legal questions, as always, I recommend that your employer work with an experienced immigration attorney to guide you through the petition process.

No wage-based H-1B lottery yet!

The H-1B lottery in March will remain a random selection process, at least for now. In September, a federal district court judge invalidated a final rule issued by the U.S. Department of Homeland Security, which oversees U.S. Citizenship and Immigration Services (USCIS), that would have changed the H-1B lottery from a random selection process to one that prioritized the highest wages. A wage-based selection process for the H-1B lottery would have disadvantaged cash-strapped early-stage startups and recent university graduates, who typically earn entry-level wages.

According to an analysis by the National Foundation for American Policy, a random H-1B lottery process makes international students and graduates 54% more likely to get selected to apply for an H-1B compared to a wage-based selection process.

However, the Biden administration has supported a wage-based H-1B lottery system, so the Department of Homeland Security might one day try again to push for the change.

Registration for the lottery

As you already know, the H-1B visa requires an employer to sponsor you, so make sure to discuss sponsorship with your employer as soon as possible so that you both can prepare. If your company doesn’t already have an immigration attorney, they will need to engage one ASAP. The attorney will walk them through creating an online USCIS account to register you and any other candidates they’d like in the lottery. Your company will have to pay the $10 non-refundable fee to register each candidate.

This is important: Your employer should not register any candidate more than once. That will result in automatic disqualification for applying for an H-1B.

USCIS has yet to announce when it will start accepting registrations for the H-1B lottery and how long the registration period will last, but it will likely begin in early to mid-March and last for a few weeks.

With the pandemic largely receding, we are anticipating about 320,000 registrants for the H-1B lottery in March, an increase over the nearly 309,000 individuals who were registered in the March 2021 lottery.

The lottery and timing

If you have a master’s or higher degree, you will have a slightly higher chance of being selected in the lottery than those with only a bachelor’s degree. To meet the annual 85,000 H-1B cap (of which 20,000 are reserved for those with a master’s or higher degree), USCIS randomly selects enough registrants to meet 65,000 H-1B applications and then draws from the remaining registrants who have a master’s or higher degree to meet 20,000 H-1B applications.

In general, beneficiaries will roughly have about a one in four chance of being selected. Country of birth and country of citizenship are not factors in the lottery process. USCIS will contact selected registrants by March 31, and employers will have until June 30, 2022, to file H-1B petitions. H-1B beneficiaries can begin working on October 1, 2022, at the earliest.

However, don’t panic if you’re not selected in the March lottery. If 2021 taught us anything, it’s that things change quickly: USCIS held three lotteries — in March, July and November — because they didn’t receive enough qualifying H-1B petitions for the selected beneficiaries.

Keep in mind that if you are eligible for and obtain a two-year STEM OPT extension at the end of your OPT period, your employer can register you for the H-1B lottery in March 2023 if you are not selected in the 2022 lottery, and again a year later in 2024 if you are not selected in the 2023 lottery. You might also be eligible for “Cap Gap” work authorization after your OPT expires.

Filing the H-1B petition

My late father, who was also an immigration attorney, used to always say: “An H-1B is really simple. Just think of it like a three-legged stool. The stool needs all three legs so you can sit on it and it won’t fall over.”

An approvable H-1B petition must demonstrate:

1. The company qualifies: It’s a real, established company in compliance with all applicable laws and tax obligations, providing an employer-employee relationship and with the ability to pay the beneficiary the prevailing wage for the job.
2. There’s a qualifying job: The position must meet legal requirements and related factors such as its title, the duties and the requisite education or experience.
3. The candidate qualifies: The H-1B beneficiary possesses the proper education and/or experience to do the job and is compliant with all applicable immigration rules.

People often ask me if pre-revenue startups can qualify to petition an H-1B. The answer is yes! Don’t worry. If the company isn’t making money yet, there are other things we can use to prove to USCIS that it’s a real and operating company with the ability to pay the prevailing wage for the job.

Listen to my podcast episode on “What makes a strong H-1B petition” for do’s and don’ts when filing an H-1B application.

Backup options

If you are not selected in the H-1B lottery, your startup should consider pursuing a concurrent cap-exempt H-1B for you, which can be done at any time of the year. Find out more about cap-exempt H-1Bs in this Dear Sophie and check out some H-1B alternatives.

You’ve got this!

Sophie

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The information provided in “Dear Sophie” is general information and not legal advice. For more information on the limitations of “Dear Sophie,” please view our full disclaimer. You can contact Sophie directly at Alcorn Immigration Law.

Sophie’s podcast, Immigration Law for Tech Startups, is available on all major platforms. If you’d like to be a guest, she’s accepting applications!