United States: Important Updates for Employers Regarding the H-1B Visa Lottery for Professional Employees (Open From March 6 - 22, 2024)

To retain the best global talent, many US employers leverage the annual H-1B visa lottery to secure work authorization for new employees. It allows employers to temporarily employ foreign workers in occupations that require a bachelor’s degree or higher in the specific specialty. The vast majority of these employees work in science, technology, engineering, and mathematics (STEM) occupations. The H-1B visa category accounts for one of the largest share of visas issued to temporary workers in the United States, for job positions ranging from Software Engineers and Software Developers to Data Scientists and Research Associates.

H-1B Visa Subject to Competitive Lottery Process

Due to a statutory cap imposed by Congress, the demand for the H-1B category often exceeds the available quota, making it a coveted visa category.¹  To address this demand, US Citizenship and Immigration Services (USCIS) requires employers to first complete an online registration process for each foreign worker (also known as beneficiary) requiring an H-1B. If more registrations are received than there are visa numbers available under the quota, the agency operates a lottery (via a random selection process) to determine who can proceed to file H-1B cap-subject petitions.

The registration period runs from Wednesday, March 6, 2024, to Friday, March 22, 2024. USCIS intends to notify employers with any selected registrations by March 31, 2024.

In advance of the registration period, the Department of Homeland Security (DHS) announced new regulations, policies, and procedures impacting the H-1B process governed by USCIS.

Beneficiary-Centric Selection Designed to Protect Against Fraud

Historically, the lottery was based upon the total number of properly completed registrations by employers. This meant a foreign worker, for whom multiple registrations were filed by multiple different, potential H-1B employers, had a greater chance of selection than someone with a single registration by a lone employer.

Beginning this year, all beneficiaries will be entered into the lottery just once, based on the individual’s passport or travel document number, competing only against the total number of other beneficiaries —and giving each beneficiary an equal chance in the lottery, regardless of the number of registrations submitted on their behalf.²   DHS implemented this change in response to concerns about the misuse by employers of the registration system, and to ensure all workers have the same chance of selection.

If a beneficiary is selected through the lottery process, each employer that submitted a registration will be notified of the selection and will be eligible to file an H-1B petition on that individual’s behalf.³  This will provide beneficiaries with greater autonomy about selecting job offers from multiple employers.

Changes in Fees and Processes Require Greater Employer Vigilance

DHS also introduced multiple changes impacting the H-1B process, the most notable of which include the following:

Fees Increases Impact Employer Budgets Per H-1B Petition

• USCIS confirmed that the H-1B registration fee will remain US$10 this year, but increase to US$215 next year, effective March 2025.⁴  However, USCIS announced that the H-1B petition filing fees will increase on April 1, 2024, from US$460 to US $780 (a 70% increase); further, the agency will implement a new “asylum program fee” of US$600 applicable to H-1Bs and other employment-based visas.⁵

New Organizational Account Requirement for Online Registrations

• DHS launched new organizational accounts, to allow multiple people within an employer organization—as well as their legal representatives—to collaborate on and prepare H-1B registrations and H-1B petitions. Importantly, a new organizational account is required to participate in the H-1B electronic registration process. Prospective petitioners and their representatives, if applicable, must use a USCIS online account to register each beneficiary. Stakeholders have reported technical issues and complexities to the system, so advance planning is necessary.

Direct and Electronic Filing Options for H-1B Petitions after Selection in the Lottery

• Beginning on April 1, 2024, USCIS will begin accepting online filings for H-1B cap petitions registrations selected in the lottery. This is a significant development from filing practices in prior years, when H-1B petitions were required to be filed via paper applications mailed to a USCIS location. For those employers electing to file via paper, even those filing locations will change. DHS is expected to announce the new filing locations sometime in March. 

Given these multiple changes impacting the H-1B lottery process and the post-lottery selection H-1B petition process, employers must carefully plan in advance and incorporate process changes into this year’s H-1B strategy.

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1) Congress statutorily limited the number of new H-1B visas that may be approved each fiscal year to 85,000 (with some exceptions for certain universities, non-profits, and government entities). Of these 85,000, Congress reserved 20,000 for individuals with US graduate degrees.

2) Last year, only 14.6% of registrations (less than one in six) were selected through the lottery, and DHS announced that more than half of total submissions were for beneficiaries with multiple registrations.

3) 8 CFR 214.2(h)(8)(iii)(A)(1) and (4).

4) The registration fee is separate and distinct from the filing fees required for those submissions that are selected and proceed with submitting a fully prepared petition that is reviewed and adjudicated by the agency.

5) Certain exemptions and reduced fees are available to small employers (25 or fewer full-time employees) and nonprofit organizations.