Ask Sophie: What should we know about the next H-1B lottery?

Sophie Alcorn, attorney, author and founder of Alcorn Immigration Law in Silicon Valley, California, is an award-winning Certified Specialist Attorney in Immigration and Nationality Law by the State Bar Board of Legal Specialization. Sophie is passionate about transcending borders, expanding opportunity, and connecting the world by practicing compassionate, visionary, and expert immigration law. Connect with Sophie on LinkedIn and Twitter.

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Dear Sophie,

Our startup is looking ahead to next year’s H-1B lottery to fill open positions. We have three people we want to register for the lottery: Two of them are currently working for us as contractors abroad, and one is currently an F-1 student working for us on STEM OPT, whose work authorization will expire in June. When will the H-1B lottery registration and application fees increase? If selected in the H-1B lottery, how long does it typically take for an H-1B candidate abroad to get approval and come to the U.S. to live and work? Any changes we should keep in mind for the next H-1B lottery? Thanks!

— Hopeful for H-1Bs

Dear Hopeful,

I appreciate you reaching out to me with your questions — and applaud you for thinking ahead to sponsor international talent!

The U.S. tech industry is facing an unprecedented talent shortage. There are 9.6 million job openings in the U.S., but only 6 million people in the U.S. are unemployed and looking for work, according to Linda Moore, the CEO of TechNet, the national, bipartisan network of tech CEOs and senior executives. We chatted about this significant skills gap and job opening crisis facing the U.S. tech sector and how crucial immigration reform is to addressing the crisis.

“There’s a dire need for high-skilled immigration,” she said. “The biggest concern among employers is being able to find the right people with the right skills. Policymakers are starting to understand how much the skills gap is affecting our economic outlook and it’s only going to get worse. Our immigration system doesn’t allow us to attract the talent we need. Companies are forced to employ those people overseas. Those jobs and the tax revenue that goes with hiring people and having employees working in the U.S. are going to other countries.”

Let me dive into your questions to help you navigate the H-1B specialty occupation visa application process for attracting and retaining international talent.

What’s the latest on fee increases?

The registration and filing fee increases that the U.S. Department of Homeland Security (DHS) proposed earlier this year have yet to go into effect. The public comment period for the proposed rule ended in March. It’s unclear when DHS, which oversees U.S. Citizenship and Immigration Services (USCIS), will publish and implement the increased fees. Many anticipate the fee increases will go into effect sometime next year, making the cost of sponsoring international talent for work visas and green cards more expensive in the coming years.

According to this year’s proposed rule, the H-1B registration fee would increase to $215 from $10, and the H-1B petition fee would increase from $460 to $780.

What’s the timeline for H-1Bs?

The H-1B process timeline is generally the same each year. In early March, the USCIS begins accepting registrations for candidates in the annual H-1B lottery from employers or employer representatives. By the end of March, the USCIS will select enough registrations to meet the annual 85,000 H-1B cap — 60,000 for individuals with at least a bachelor’s degree and 15,000 for individuals with a master’s or higher degree — and will notify employers whether their candidates have been selected.

Employers have until June 30 to submit a Labor Condition Application for approval from the U.S. Department of Labor and an H-1B petition to the USCIS. If the USCIS approves the petition, the earliest the H-1B beneficiary can begin working is October 1, which is the start of the new fiscal year. The USCIS is taking about two months to adjudicate H-1B cases, according to the USCIS Case Processing Times page. Premium processing, which guarantees the USCIS will either make a decision on the H-1B petition or issue a request for evidence within 15 days, is available for the H-1B for a $2,500 fee.

Occasionally, the USCIS will do a second — or even a third — selection round if it does not receive enough H-1B petitions or the H-1B denial rate is higher than expected.

Changing status, such as from F-1 student status to H-1B status, is the quickest since it requires no interview if the individual is in the United States. By next year, that individual may be eligible to get an H-1B visa stamp in their passport while within the United States. Otherwise, if they travel abroad, they will have to make an appointment at a U.S. embassy or consulate to get a visa stamp in their passport to return to and enter the United States.

Once they are approved for an H-1B visa, individuals abroad must make an appointment for an interview at a U.S. embassy or consulate to get the visa placed in their passport. The wait times for scheduling a non-immigrant visa appointment at consular offices continue to be a source of frustration for many. The U.S. Department of State Visa Appointment Wait Times page provides an estimated wait time for an appointment at a specific embassy or consulate. These wait times are based on the number of days an applicant must wait until the first open appointment for each visa category and weekly reports submitted by the consular posts.

What to keep in mind

The DHS published a proposed rule in October seeking to clarify and improve the H-1B process. I delve into the proposed rule in more detail here. It’s uncertain when, exactly, the rule will be finalized. But it will likely be in place before the next H-1B lottery in March.

In this year’s H-1B lottery, the USCIS received a whopping 758,994 eligible registrations, and for the first time, more than half were for H-1B candidates who had more than one employer who registered them in the lottery. (How does the annual lottery work? Check out my podcast for an overview.)

One of the changes in the proposed rule levels the playing field for all H-1B candidates by only entering each unique candidate in the lottery once regardless of how many times they are registered for the lottery by different employers. Then, if an H-1B candidate is selected in the lottery, each employer that registered the candidate would be eligible to file a petition on the candidate’s behalf, which effectively means the individual can choose which employer to work for.

The proposed rule would also extend the cap gap for F-1 students on OPT or STEM OPT work authorization to continue working in the U.S. without interruption, which would benefit the F-1 student who is currently working for you on STEM OPT. The cap gap bridges an F-1 student’s work authorization between when the OPT or STEM OPT work authorization is set to expire, which is June in the case of your employee, and October 1, when they can officially start working under H-1B status. The proposed rule would provide a cap-gap extension through April 1, adding six months. This would mean you can avoid paying for premium processing when filing an H-1B petition on behalf of your F-1 STEM OPT employee and select a start date as late as April 1, 2025.

Check out this previous column in which I offer suggestions for how to present a strong H-1B petition and options that are available if your candidates are not selected in the H-1B lottery.

You’ve got this!

— Sophie

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