The H-1B Lottery: Understanding How to Navigate the New Process

For many this time of year is to recover from the excesses of the festive period, or to start planning their summer vacations. But for those with a desire to work in the US, or already work within the US in HR functions, it is the time of year where thought ought to turn to H-1B applications.

For those that are new to the topic, a H-1B is essentially a work visa which allows for an individual to work within the US for a specified employer. To qualify, an individual must be sponsored by a US employer and possess at least a Bachelor's degree or a combination of work and education equivalent to a Bachelor's degree.

Incredibly desirable, issuance is limited to 65,000 for ‘regular’ applicants and 20,000 for those who possess an advanced US degree per year with the management of award tightly controlled by the US authorities. Due to the limits available, applications are governed by a lottery with only those successful at the lottery given the opportunity to formally apply for a H-1B.

The fiscal year 2025 H-1B lottery will run in March 2024. It may seem some time off, however over time the lottery process has become more complex with seemingly higher levels of competition.

Physical Filing To Online Lottery

Additional complexities have been caused by the (USCIS) US authorities switching from a physical filing lottery to an online lottery. This means that cases must be submitted through the USCIS portal during the month of March in order to be considered. Whilst the use of technology usually means easier processing, unfortunately the registration process is not intuitive and requires several steps. First, an account must be set up and approved before individuals can be added. Then the information for each individual must be entered with all required fields completed fully and accurately. If the information is inputted incorrectly, there is no notification. Rather, the individual’s registration will not receive a lottery number. Once each individual has a lottery number assigned, only then will you know that the individual will be fully registered for the H-1B lottery.

Comparing to the previous physical process of case filing at lottery stage, the current lottery process is certainly less burdensome for a practitioner or applicant, however, if an applicant is lucky enough to be successful, they only have 90 days to submit the application once notice of acceptance has been issued. As such, it is recommended that as much as possible of the preparation is completed in advance of the lottery in case successful. If the 90- day deadline is missed, no extensions are given.

What Happens If I Missed The Deadline?

Should there be a high number of those that miss the submission deadline, or duplicate filings, it remains possible for a second lottery to be completed later in the year. Second lotteries cannot be guaranteed however. As such, you may be considering what can be done to maximise chance of success at lottery stage. Utilizing an attorney to ensure correct and timely submission is absolutely a benefit. Historically, applicants have also seeked to gain an advantage by filing multiple applications. If a company files multiple registrations for the same individual, that is an unauthorized duplicate. If that happens, all registrations for that individual will be rejected. However, a single individual has been allowed to file multiple registrations as long as each is done by a different company. This however has caused huge numbers of duplicates, which has caused inefficiencies in the facilitation of the lottery.

Given this, the USCIS has proposed a rule change that would disallow duplicate filings going forward. An individual could still apply based on working for multiple companies, however they would only count as having one entry into the lottery. Hopefully coming into affect the coming year, this gives a fairer chance to all applicants and removes the administrative inefficiencies.

Preparation Is Key!

If successful at lottery stage, thought then turns to application filing. As above, advance preparation is key. The odds of being successful at the lottery are incredibly low, to then fail at application stage would be devastating.

Denials and rejections can happen for a few reasons:

1. Misalignment of the job category. It is critical to pick a government job category that fits the background of the individual being sponsored and the job duties for the position. If these things are not properly aligned, the case will be denied.
2. Missing the filing window. As above, once a case is selected in the lottery, there is a limited time window in which to file the case. One unexpected way this could occur is if the case is filed with the wrong regional center. It might take USCIS several weeks to return the petition, thereby providing notice of the misfiled case. By this point, the filing window may well be closed. This is another area where working with a qualified law firm is helpful since they will have the most up-to-date information on where cases should be filed.
3. Education background. The individual being sponsored must have at least a US bachelor’s degree or US bachelor’s degree equivalent. This can be a foreign degree that is evaluated by a certified evaluation company as equivalent to a US bachelor’s degree. This can also be met through experience equivalent to a US bachelor’s degree, or a combination of education and experience. It is critical to ascertain how this requirement will be met in advance, and the appropriate evidence obtained - degree verification can be a lengthy process.

You're Not Alone

Sterling Lexicon and Graham Adair partner seamlessly to simplify our client’s experience. When you have employees relocating to the U.S., our team of experts will manage the process efficiently and effectively so that the U.S. visas and the immigration support needed for relocation are the least of your concerns when you are putting your team in place.

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