Employers: Choose H-1B Lottery Entries Wisely Amid Trump-Era Uncertainties

H-1B work visas are the most common work visas for foreign nationals in professional positions (which are jobs requiring at least a bachelor’s degree in a specific specialty). Employers can only apply for a worker’s initial H-1B one time per year during the month of March. The US Citizenship and Immigration Services (USCIS) cap the number of H-1B’s they issue each year to 65,000 for those with a bachelor’s degree and an additional 20,000 to those with at least a master’s from a US institution. Historically, more H-1B cap-subject applications are submitted every year than spots allowed, and thus, the USCIS conducts a lottery every year to randomly choose who will be eligible to file H-1B applications.

Who Should Be Registered in the Lottery

The lottery is only for someone’s initial H-1B, not for existing H-1B extensions or transfers. So, typically, the H-1B lottery is for:

• F-1 (foreign students), including those working with Optional Practical Training (OPT) or Curricular Practical Training (CPT) work authorization.
• Spouses working in H-4, L-2, or E visa status who want their own independent work visa through their employer instead of relying on their spouse’s status and expiration dates.
• TN professionals who are thinking about starting the green card process (because you generally cannot file for a green card while in TN status).

Employees in other statuses may also be eligible.

Considerations Given the Incoming Trump Administration

Given the uncertainties of the incoming Trump Administration and the possibilities of restricted immigration options for foreign workers, it may be advisable to be over-inclusive in this year’s March H-1B lottery. Whereas in the past, employers may have been conservative in choosing who they wanted to submit into the H-1B lottery, this year, it seems more prudent to include all workers who may be eligible so that they have an additional work authorization avenue open to them in case the new Administration implements rules that limit or eliminate their current work authorization. During President Trump’s prior term, he sought to eliminate spousal work authorization, including that for H-4 and L-2 spouses, and he may seek to limit or eliminate spousal work authorization again. In view of this uncertainty, employers should consider submitting into the H-1B lottery any key workers who are currently employed in H-4 EAD, L-2S or E-1S, E-2S, or E-3S spouse status.

Who Is Exempt From the Lottery

Certain categories of H-1B’s are exempt from this cap (meaning they can apply for an H-1B anytime), including those:

• Transferring existing H-1B’s from one employer to another.
• Extending existing H-1B’s.
• Working for US colleges or universities.
• Working for a nonprofit institution affiliated with a US college or university.
• Working for nonprofit research organizations.

Lottery Registration Timeline and Process

The lottery registration period will be in March, but the government has not yet announced the exact dates. It is typically the first two weeks of March. If this registration window is missed, employers must wait a year until the following March for the next H-1B lottery for a chance at an H-1B for their foreign national employee. So, it is important to do a full assessment of all upcoming staffing needs now.

Employers must register each foreign national they wish to sponsor for an H-1B through the USCIS’ online H-1B registration portal on My USCIS. The prospective H-1B worker must have a valid passport in order to register for the lottery, and that passport information is entered into the lottery registration. If they are chosen in the lottery, the worker must use the same passport listed in the lottery registration in the complete petition filed by the employer and when applying for their H-1B visa abroad. While USCIS has discretion to accept a change in passport number or expiration date due to a renewal, a best practice is for prospective H-1B applicants to immediately renew any passport that is expiring soon so that they can enter the newly extended passport information into the H-1B lottery registration.

The USCIS will conduct a random lottery based on all the registrations. Last year, the USCIS launched a new “beneficiary-centric” lottery process, and that process remains the same this year. Under this process, although employers submit the H-1B lottery registrations for their prospective H-1B workers, the USCIS will select beneficiaries, not employers, in the lottery. So, for example, if an individual has three different employers submit H-1B lottery registrations for them, the USCIS will consolidate those registrations under one beneficiary/worker. Then, the USCIS will randomly select beneficiaries from the lottery pool. If a beneficiary is selected, all employers who registered that worker will be notified of the selection and they can each file H-1B applications for that worker. This new “beneficiary-centric” selection process is designed to lessen the unfair advantage given to beneficiaries who have multiple employers submit registrations on their behalf. Under this new system, each worker is expected to have the same chance at selection, regardless of the number of registrations submitted on their behalf.

Those who have a master’s or higher degree from a US institution will first be entered into the “regular” H-1B lottery, which allows for 65,000 H-1B’s per year. If they are not selected in the “regular” lottery, they will then go into a second lottery pool of only those with a master’s or higher from a US institution, and there will be another lottery conducted from this pool, allowing for an additional 20,000 selections.

Foreign nationals must have their qualifying degree by the time they file the full application. A foreign national who is close to graduating with their bachelor’s degree can be registered by the employer for the lottery, and then, if chosen in the lottery, take the full 90-day period to file the full H-1B application to allow time for the degree to be awarded.

Typically, the USCIS notifies employers through their My USCIS online accounts by March 31 if their registrations were selected in the lottery. Those chosen in the lottery will be given at least 90 days to file their full H-1B applications (typically April 1-June 30). The earliest H-1B employment start date you can request in the full application is October 1, 2024.

Those not chosen in March will remain in the electronic lottery registration system, and, if additional H-1B spots become available, the USCIS will choose additional H-1B applications from that reserve. In the last four years, additional spots became available and they conducted a second lottery in August. In 2021, there was a third lottery in November.

Work and Travel Impact on F-1’s

Regarding those in F-1 OPT status, as long as they were selected in the lottery and their full H-1B application was filed prior to their OPT expiration date, their OPT work authorization will be automatically extended through April 1, 2026 (unless their H-1B is rejected, denied, revoked, or withdrawn prior to that date). To ensure that this OPT extension is activated in a timely manner, those in F-1 OPT status may want to file their full H-1B’s as soon as they are notified that they were chosen in the lottery (rather than using much of their 90-day filing window).

Generally, those with expired OPT’s will not have international travel authorization. In addition, anyone filing for a change of status from one visa category to an H-1B cannot travel internationally while the H-1B application is pending. Otherwise, although the H-1B status may still be approved, the employee will have to leave the United States, obtain an H-1B visa at a US Consulate abroad, and then reenter the United States to activate the H-1B, instead of just automatically changing into H-1B status on October 1.

Conclusion

The Immigration team at ArentFox Schiff can help you assess who to enter into the lottery and guide you through the H-1B lottery and application process. Please contact Berin S. Romagnolo or Nancy A. Noonan with any questions.