The H-1B visa continues to be one of the most popular visas in the United States, enabling U.S. companies to obtain qualified foreign workers to fill the gaps in the U.S. labor force. We have written about the H-1B visa in previous blogs, but some interesting developments this year are raising questions in people’s minds that warrant further examination.
In this blog, we will briefly address the following:
- What is the H-1B classification, and how does it work?
- What is the current (FY 2024) status of H-1B registrations (sometimes called “H-1B lottery”)?
- Are there alternatives if not selected in the H-1B lottery?
- Need help with the H-1B process?
What is the H-1B classification, and how does it work?
The H-1B classification is work-based and is designed specifically for qualified workers in “specialty occupations.” For an occupation to qualify for H-1B classification, the position must require the theoretical and practical application of a body of highly specialized knowledge and the attainment of at least a U.S. bachelor’s degree (or the foreign equivalent) in a specific specialty or major.
In preparing to file an H-1B petition, the employer must prepare and comply with Department of Labor regulations, including filing a Labor Condition Application (or LCA). Part of the LCA process is to ensure that the employer is willing to pay the foreign national the greater of either the “prevailing wage” for similar work in the same geographical location or the “actual wage” that they would pay other employees for the same work within the company.
To protect job possibilities for U.S. workers, the government has imposed an annual cap of 65,000 visas for the general population. An additional 20,000 visas are allocated for individuals who have earned a U.S. master’s degree or higher. Due to high volumes of registration applications each year, the U.S. Citizenship and Immigration Services (USCIS) implemented a lottery system to help reduce workload and streamline the application process.
The current lottery system requires prospective employers (“petitioners”) to submit an electronic registration for a prospective employee (the “beneficiary”) within an allotted time frame (usually in March of each year). USCIS’ computers then randomly select from the pool of registrations, after which selected petitioners are required to submit the full petition to the USCIS’ designated lockbox. Not being selected in the lottery is not considered a negative factor against the petitioner or beneficiary, and they remain eligible to apply again in the next fiscal year or to apply for a different visa.
The H-1B petition is comprised of multiple documents, including the Labor Condition Application (LCA), which asks the DOL to certify that the employer has performed its due diligence and compliance to employ the foreign national. If the LCA is certified by the DOL, the petitioner must file Form I-129, Petition for a Nonimmigrant Worker, with the appropriate addendum and evidence with USCIS, which will determine whether the sponsored job position meets the definition of a specialty occupation and the beneficiary has the necessary education and/or work experience background to qualify for the H-1B classification.
If this petition is approved, then the beneficiary, if they are outside the United States, must submit a Form DS-160 “Nonimmigrant Visa Application” to their local U.S. embassy or consulate. If the beneficiary is physically present in the United States, many employers will request a “change of status” in the I-129 petition so that the prospective employee may remain in the U.S.
The H-1B classification may be used for a maximum of six (6) years. Many employers will ask for the first petition to be valid for three years, but depending on the circumstances, a petition may be valid for less time. Prior to the expiration of the petition, the petitioner and beneficiary must determine whether an extension of the status petition will be submitted to the USCIS.
What is the current (FY 2024) status of H-1B registrations (sometimes called “H-1B lottery”)?
In Fiscal Year 2024, USCIS received 780,884 H-1B lottery registrations, the largest number of registrations ever received. This figure was also over 60% greater than the previous year’s number (483,927), and over 150% greater than 2022’s total count (308,613), demonstrating the growing popularity of the H-1B classification.
The initial selection period completed in March 2023 resulted in about 110,000 selected registrations. USCIS believed this number would be sufficient to fill the 85,000 cap limit for the year. However, without explanation, USCIS announced that a second lottery selection was conducted in July, with over 75,000 more registrations added to the processing pool.
Unfortunately, USCIS reports that in FY 2024, there was an increase in fraud in the registration process. USCIS detected an increase in the number of situations in which multiple registrations were filed for the same beneficiary. Some of these multiple registrations could be accidental, but USCIS believes that others represent attempts by people to “game the system” and gain unfair advantages by working together to submit multiple registrations to unfairly increase the chances of selections. The USCIS website states that it has already undertaken extensive fraud investigations and denied or revoked petitions.
USCIS reports it is working on new rules to modernize the registration and lottery system, though they have not revealed any details yet. On October 20, 2023, the Department of Homeland Security (DHS), through USCIS published a Notice of Proposed Rulemaking to modernize the H-1B program and strengthen integrity measures, including changing how USCIS conducts the registration selection to reduce the possibility of misuse and fraud. We hope that whatever changes do come will serve the purpose of genuinely reducing the potential of fraud while ensuring equal access and opportunity for both employers and employees.
Are there alternatives if not selected in the H-1B lottery?
If a petitioner and/or beneficiary was not selected in the H-1B lottery, there are still other options. For example, there are several employers (e.g., universities, non-profit or government research facilities) who are exempt from the lottery registration system and may file a petition to employ a prospective H-1B nonimmigrant any time.
Furthermore, there are other nonimmigrant visa classifications that are designed for individuals who are highly trained and skilled as well. The O-1 classification, for example, is available for those people who have achieved “extraordinary ability” in their field, often measured by the level of national or international recognition they have received for their work. Another example is the L-1B classification, which allows workers in foreign companies with U.S. offices to be transferred to a U.S. office if they possess “specialized knowledge” that is integral to the operations of the company. The E-3 classification is available specifically to citizens of Australia who, as with the H-1B, work in specialty occupations requiring advanced degrees. Likewise, professionals from Mexico and Canada can obtain a TN classification to work for a U.S. company within their profession.
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The U.S. Immigration system can be very complicated, with both petitioners and beneficiaries required to be diligent in ensuring the proper procedures, documents, and steps are taken to secure H-1B work authorization. At Levin and Pangilinan PC, we are constantly monitoring the landscape of visa regulations and are able to guide our clients through any changes that may affect them. We cannot guarantee specific outcomes, but we do guarantee that our work for our clients will give them the best possible chance at success. Contact us today, and let’s talk about your immigration needs.
The information provided in this blog does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this blog are for general informational purposes only.
2024 H-1B Visas FAQs
Q: How does the H-1B visa lottery work in 2024, and what can applicants do to increase their chances of selection?
A: The H-1B visa lottery is a crucial step in the application process, with a limited number of visas available each year. Understanding the lottery process, odds of selection, and strategies to enhance one’s chances can provide valuable insights for aspiring H-1B visa holders.
Q: Are there alternative visa options for skilled foreign professionals if they are not selected in the H-1B visa lottery for 2024?
A: In cases where individuals are not selected in the H-1B visa lottery, there are alternative visa pathways to consider. Exploring options like O-1, L-1, E-3, and TN classifications or employment-based green cards can offer viable alternatives for skilled foreign professionals seeking to work in the US. There are also several employers (e.g., universities, non-profit or government research facilities) who are exempt from the lottery registration system and may petition for an H-1B at any time.