Zulkie Partners can help your company prepare NOW for the USCIS FY2024 H Cap Lottery
According to Interstride.com, approximately 200,000 international students are hired each year by U.S. companies through optional practical training (OPT) employment authorization. While OPT boosts the U.S. workforce and provides international students with invaluable work experience, it’s only temporary authorization and an employee’s ability to work pursuant to OPT maxes out in 1-3 years, depending on their educational circumstances. In order to retain an OPT employee in the U.S., a company will need to sponsor them for an H-1B employment visa.
What is an H-1B employment visa?
The H-1B employment visa is a nonimmigrant classification used to employ a foreign national in a ‘specialty occupation,’ i.e., a position where the nature of the duties is so specialized and complex it requires obtaining a bachelor’s degree or higher in a specific field of study. In order to qualify for H-1B visa status, the foreign national must minimally have the equivalent of a U.S. Bachelor’s degree in the field of study as required by the hiring company for their open position.
H-1B visas are valid for up to six years, with an initial approval timeframe of up to three years and an option to extend for another three. H-1B visas are job and location specific, meaning the H-1B visa holder must (1) work only for the petitioning U.S. employer; (2) work only at the worksite(s) listed on the H-1B petition; and (3) perform only the job duties described in the petition.
Current U.S. immigration law limits the issuance of new H-1B visas to just 85,000 per year: 65,000 H-1B visas are issued to foreign nationals holding a U.S. Bachelor’s degree or its equivalent and 20,000 H-1B visas are issued to foreign nationals who have obtained a master’s degree or higher from a U.S. university.
What is the H-1B Cap Lottery?
USCIS has historically received more applications than the number of H-1B visas allotted per year by U.S. law. (For FY 2023 alone, USCIS received 483,927 H-1B registrations for the just 85,000 available visas!) In order to fairly choose who will receive a H-1B visa, USCIS has implemented a computer-generated Lottery system to randomly select applicants until it reaches the numerical limit of the visas allotted.
How this works – during an H Cap Lottery registration period, minimal information from a petitioning company and the foreign national beneficiary is submitted to the USCIS. If this submission receives a visa number in the computer-generated Lottery, the petitioning company has 90 days to submit a full H-1B petition on behalf of their foreign national beneficiary for USCIS adjudication. If the application is approved, the foreign national can begin their H-1B employment with the petitioning company on or after October 1 (start of the government’s fiscal year).
If the submission does not receive a visa number, it is considered rejected and the employer must wait a full year until the next FY H Cap Lottery is held to try again.
What are my company’s responsibilities for sponsoring an H-1B employee?
A company sponsoring an H-1B visa holder must:
- Maintain a valid employer-employee relationship with the H-1B visa holder at all times
- Pay all associated USCIS fees for filing of an H-1B visa petition
- Pay the H-1B visa holder the prevailing wage for the position, as determined/approved by the U.S. Department of Labor
- Notify USCIS of any significant change to the H-1B visa holder’s worksite or job duties
- Provide reasonable costs of return transportation of the H-1B visa holder to their home country abroad, in the event the foreign national is dismissed from employment prior to the expiration of their current H-1B period
What are the important FY2024 H Cap Lottery dates to keep in mind?
Specific dates for the FY 2024 H Cap Lottery have yet to be announced however will likely be close to the following:
- Mid-February 2023: Registrant accounts for petitioning employers can be created on USCIS website
- Early March 2023: Registration period opens and entries can be submitted by petitioning employers on behalf their foreign national employees
- Mid-March 2023: Registration period closes
- Late March/Early April 2023: USCIS holds the lottery and notifies those who received a visa number, allowing them to submit an application for an H-1B visa
- Early April 2023: Full H-1B applications are accepted by USCIS for adjudication
What steps should my company take now to register for the H Cap Lottery?
Zulkie Partners can help by facilitating the H-1B petition process between your company and the USCIS. We will handle all H-1B Cap Lottery registration activities and deadlines for both your company and your foreign national employee. Minimal information is needed now to start the process and, if your employee’s registration is chosen in the Lottery, we will work with you to get the full H-1B petition prepared and submitted to USCIS in a timely manner.
Our company has a foreign national employee that still has over 12 months left before the expiration date of their OPT employment authorization. Should we still register in this year’s Lottery?
Yes! As noted above, USCIS received 483,927 H-1B registrations for FY 2023, vying for just 85,000 available visas! Registering for multiple FY Lotteries will only increase the chances of your foreign national employee being able to grab a visa number, allowing them to remain employed in the U.S. past the expiration date of their OPT.
Our company has a foreign national employee working pursuant to H4 or L2 dependent visa employment authorization (EAD card). Can we enter them into the H Cap Lottery?
Yes! The H Cap Lottery is not intended just for international students working in the U.S. Your company may submit a H Cap Lottery registration for a foreign national employee who is currently working pursuant to dependent employment authorization (i.e. EAD card). Employment authorization for those working pursuant to an H4 or L2 EAD card is tied to their spouse’s employment status and ability to work. Obtaining an H-1B visa for your employee will provide your company with an advantage when it comes to the options of retaining the employee in the future. Your company can also enter employees currently working pursuant to TN (United States–Mexico–Canada Agreement) visa status.
Our company has identified a foreign national currently outside the U.S. that we would like to hire and bring to the U.S. for employment. Can we enter them into the H Cap Lottery?
Yes! The H Cap Lottery is not intended only for those foreign nationals currently in the U.S. You can submit H Cap Lottery registrations for foreign nationals who are currently living abroad. If the entry receives a visa number in the Lottery, and the subsequent H-1B application is approved, the foreign national worker can enter the U.S. and begin their employment in H-1B status on or after October 1,2023 (start of the government fiscal year).
Please feel free to reach out to a Zulkie Partners attorney to further discuss how we can help your company prepare for the FY 2024 H-1B Cap Lottery!