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Time for Employers to Decide Who They Are Sponsoring for H-1B’s

It’s that time of year again where employers have to decide who they are sponsoring for an H-1B visa.

For a brief background, 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). The USCIS caps 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 Masters from a US institution. Certain categories of H-1B’s are exempt from this cap (meaning they can apply for an H-1B anytime), including those:

  1. transferring H-1B’s from one employer to another,
  2. extending existing H-1B’s,
  3. working for US colleges or universities, and
  4. working for non-profit research organizations.

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 which applications it will process.

Last year, a new lottery system was implemented, and that same system will be in place this year. Employers will have a period of time in March to register into the lottery through the USCIS’ online system each foreign national they wish to sponsor for an H-1B. The USCIS will conduct a random lottery based on all the registrations, and those chosen in the lottery will be given at least 90 days to file their full H-1B applications. Those not chosen 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.

The lottery registration period will be from noon on March 9, 2021 to noon on March 25, 2021, and the USCIS intends to notify employers by March 31, 2021 if their registrations were selected in the lottery.

Currently, it is not clear if Premium Processing (which is expedited, 15-day processing) will be available for filing the full H-1B applications for those selected in the lottery.

Each lottery registration will cost $10 in filing fees to be paid online through the pay.gov site. If the USCIS determines that an employer has a pattern or practice of submitting multiple lottery registrations but then not following-up with filing full applications if chosen in the lottery, the employer may be fined and face civil & criminal penalties for fraud.

Regarding those in F-1 (foreign student) OPT (optional practical training) 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 September 30th (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.

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. 

Employers should decide who they would like to submit into the lottery now given the impending March registration timeline. The lottery is only for someone’s initial H-1B, not H-1B extensions or transfers. So, typically, they are: (1) F-1 (foreign students) who recently graduated and are working with Optional Practical Training (OPT) work authorization, (2) those working with H-4 or L-2 Employment Authorization Documents (EAD’s) who want their own independent work visa through their employer instead of relying on their spouse’s status & expiration dates, and (3) TN’s who are thinking about starting the green card process (because you generally cannot file for a green card while in TN status). Although those are the most typical categories, other employees are also commonly registered in the lottery, such as those in professional-level jobs with Asylum, Temporary Protected Status (TPS) or DACA EAD’s, F-1 students finishing an advanced degree who have Curricular Practical Training (CPT) work authorization, J-1 exchange visitors and scholars, and those living abroad with no current US immigration status.

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