Q. How does the H-1B cap lottery work?

A. Once again, the H-1B cap filing season is here. The H-1B is a popular U.S. work visa available to highly skilled foreign nationals who are offered an H-1B-qualifying position by an employer. This visa is also known as a “specialty occupation” visa because in order to be eligible for this visa category, the position being offered to a foreign national must require a minimum of a bachelor’s degree in a specific field, and the foreign national must meet that requirement. Typical candidates for the H-1B petition include students and recent graduates currently working under a work permit card (OPT or STEM OPT). In some cases, employees in TN status might benefit from switching over to H-1B.

Since petitions filed outnumber available visa numbers, the U.S. Citizenship and Immigration Services (USCIS) conducts a lottery each year to select the ones it will adjudicate. In 2020, USCIS changed its procedure slightly by adding an electronic registration process. This year, that process will take place between March 1 (noon ET) and March 18 (noon ET). During this period, employers must submit a separate registration for each qualifying foreign national and pay the $10 registration fee for each submission. If a sufficient number of registrations are received, USCIS will randomly select the number of registrations projected as needed to reach the FY 2023 H-1B numerical allocations after the initial registration period closes. It will notify registrants with selected registrations by March 31, 2022. Employers with selected registrations can then file an H-1B cap-subject petition for USCIS adjudication.

While the electronic registration process had a number of issues when first introduced in 2020, USCIS makes improvements each year to make the process a bit easier to navigate. From a cost perspective, it may be a welcome change for employers as they can now wait until an individual is selected in the lottery to prepare a complete H-1B petition.

If you have employees who might benefit from participating in this year’s lottery, please contact a member of the Troutman Pepper Immigration Team.