H-1B Visa Lottery & 2023-2024 CAP Season: A Primer

As we begin this new year, we also enter the time to start thinking about and preparing for the FY2024 H-1B cap filing season. To properly navigate the cap season, petitioners and potential beneficiaries/workers require timely information and professional guidance. That’s where we come in!

Immigration Law Group (ILG) provides employers and H-1B hopefuls with decades of business immigration experience, including specialized expertise in the H-1B cap process. Over the years, our attorneys and legal staff have successfully assisted corporations (big and small) and foreign nationals from all over the world with the legacy H-1B cap process and the newly-instituted registration system. With ILG, H-1B hopefuls are able to secure H-1B visas efficiently and painlessly. If you would like additional information on all of our services and the ways we can help with your immigration needs, please feel free to contact us for a personalized consultation.

But if you just need to cut through all the noise and avoid time-consuming Internet searches or confusion brought on by too much legalese found in other outlets, you’ve come to the right place. This primer will serve as a quick-reference guide for all the news, information, updates, and data you will need for the FY2024 H-1B cap season.

NOTE: Information included in this primer is accurate as of the publication date. Policy changes and relevant news from the U.S. Citizenship and Immigration Services (USCIS) will be incorporated as they occur.

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The Basics of the H-1B Visa Cap & Lottery System

The H-1B visa classification was created by Congress to enable U.S. companies to employ foreign nationals in the U.S. in skilled, specialty occupation positions, i.e., jobs that require a bachelor’s degree or higher and the theoretical and practical application of a body of highly specialized knowledge in fields such as architecture, engineering, medicine, mathematics, science, law, business, or the arts. Therefore, to be eligible for the H-1B visa, the foreign national must possess at least a bachelor’s degree (or its equivalent) and that degree must have provided them with the highly specialized knowledge required for the offered job.

In creating the H-1B visa category, Congress mandated that a cap or quota would be placed on the amount of visas available. Currently, there are 65,000 H-1B visas in the “regular cap” and 20,000 in the advanced degree exemption or “master’s cap,” which is only available to individuals who hold a U.S. master’s degree or higher. Any petitions that are cap-exempt, or not subject to the cap, will not be counted towards the 85,000 visas available in the H-1B lottery.

NOTE: Citizens of Chile and Singapore can avail themselves of the H-1B1 program, which sets aside 6,800 visas for Chilean (1,400) and Singaporean (5,400) nationals seeking employment in a specialty occupation. Many of the same rules that apply to the H-1B program apply to the H-1B1 program, with the primary exception being the initial duration of employment after approval: 3 years for H-1B and 1 year for H-1B1.

The first step in the process is for the employer or ILG acting as the authorized representative to register all potential workers in the electronic registration system and pay the $10 registration fee. Registration consists of entering basic data of the company and worker into an online portal. The company must complete electronic registration for each beneficiary/worker and is limited to only one registration per H-1B worker.

Once registration closes, USCIS conducts the H-1B lottery as a two-part, random selection process used to determine who may submit an H-1B petition to receive the available visas. The first part is the regular cap and is open to anyone who is properly registered. The second part, or master’s cap lottery, is only open to those with a U.S. master’s degree or higher. Conducting the lottery in this order gives individuals with advanced degrees two chances at being selected. USCIS may conduct as many selection rounds as necessary to meet the quota for the fiscal year.

If a worker is selected, the employer (or its representative) is required to confirm through the electronic system that an H-1B petition will be filed for the selected worker. 

For all approved H-1B petitions subject to the cap, the beneficiary’s official start date in H-1B status will be October 1, 2023.

Detailed Review of the H-1B Registration Process and Timeline for FY2024

Beginning with the FY2021 H-1B season, USCIS has relied on an electronic pre-registration system to conduct the H-1B lottery. This system makes the collection of data from employers and H-1B hopefuls more manageable and efficient. Prior to this, employers would mail physical copies of the entire H-1B application packet for every potential worker to USCIS in the first week of April. USCIS would then make the lottery selections from this group and return unselected packets by mail. The online registration system eliminates the need to prepare, mail, accept, and return physical packets for those who are not selected in the lottery, making the overall process more streamlined for all parties.

The registration process is fairly straightforward, but certain instructions must be followed during a given time period to ensure registration is properly completed. Only properly submitted registrations will be considered in the visa lottery selection process, and only selected registrations will be permitted to file cap-subject petitions.  

Keep an eye out on this space for further updates on USCIS announcements for FY2024. We will also provide updates on how/when USCIS will notify myUSCIS online account holders of their selection, if applicable.

Registration Step-by-Step

• Create a myUSCIS account starting Noon EST on February 21, 2023.
• Lottery selection commences. USCIS conducts the lottery in two waves, beginning with regular cap and ending with master’s cap.
• USCIS notifies selected registrants on or by March 31, 2023.
• The 90-day filing window opens and petitioners may begin filing petitions on April 1, 2023.

How to Avoid a Denial at the Registration Stage

• Submit a complete and accurate registration between Noon EST on March 1, 2023 and Noon EST on March 17, 2023.
• Submit only ONE registration per beneficiary and employer/sponsor. Employers may submit registrations for multiple beneficiaries and a beneficiary can be sponsored by multiple employers, but there can only be one registration per beneficiary-employer combination.

Documents and Information to Prepare - Employer

• Employer’s name
• Company’s Federal Employer Identification Number (or Federal Tax Identification Number)
• Official business address
• Official contact information
• Lawyer’s contact information

Documents and Information to Prepare - Beneficiary

• Full, legal name
• Birthdate
• Country of residence and citizenship
• Passport number
• Gender
• Education details – receipt of a master’s degree or higher from a U.S. institution is relevant for master’s cap

Determining Whether You Have Been Selected for the FY2024 H-1B Lottery

USCIS will officially announce when the selection period has begun, but attorneys and petitioners may receive email notifications regarding selection shortly before this announcement. When notification is received, you will be directed to sign in to your myUSCIS account to view the registration status update. Possible status updates include: SUBMITTED, SELECTED, NOT SELECTED, or DENIED. Depending on your status update, your case will be treated as follows: 

• SUBMITTED----Your registration has been successfully submitted. USCIS is considering registration and no decision regarding selection or denial has been made. If a “submitted” registration has not been changed to “selected” by October 1, 2023, it will change to “not selected” on that date.
• SELECTED----Your registration has been selected and a petition may be filed based on the filing timeline USCIS provides in the selection notice.
• NOT SELECTED----Your registration was not chosen. As multiple selection rounds may occur throughout the Spring, Summer, and (possibly) Fall, this status will not be shown on an account until October 1, 2023.
• DENIED----An improper registration was submitted and the registration has been denied.

H-1B Lottery Historical Trends & Forecasts

Pursuant to regulation, USCIS considers historical data regarding approvals, denials, revocations, and registrations to determine the number of petitions it needs to receive in order to meet the H-1B cap each year. Because registration numbers are part of their methodology, USCIS keeps records on the number of registrations received per year and the number of selected registrations that did not result in an H-1B filing. This information also helps USCIS determine how many selection rounds it needs to conduct to reach the numerical cap for a fiscal year.

For instance, 308,613 registrations were received for FY2022 and USCIS initially selected 87,500 registrations to reach the yearly cap. FY2022, however, was a low filing volume year, requiring a 2^nd and 3^rd round of selections. During these rounds, an additional 27,717 and 16,753 registrations were selected, respectively, resulting in a final total of 131,970 selected registrations (or approx. 42.8% of registrations received) for the fiscal year.

Based on this outcome as well as other historical data, USCIS initially selected more registrations for FY2023. Out of the 483,927 H-1B registrations it received last year, 127,600 were selected during the initial selection period. This projection was sufficient to meet the annual quota and USCIS did not require any further selection rounds for FY2023. 

According to USCIS data, H-1B approval rates hovered around 90%-95% (5% - 10% denial rate) for the first half of the 2010s. Around 2016, however, approval rates began to decline, with the denial rate eclipsing 20% multiple times and USCIS officers requesting additional evidence or issuing notices of intent to deny in a vast majority of cases from 2017 to 2019. Many practitioners, employers, and industry analysts believe this sudden change was due to the restrictive immigration policies implemented by the Trump Administration, including the “Buy American and Hire American” executive order.

H-1B policies have softened in the last two years and so have the inappropriately high levels of scrutiny officers had applied to their reviews of H-1B petitions. As a result, approval rates in FY2021 and FY2022 both reached all-time highs of 96% and 97.5%, respectively. This suggests that USCIS reviews of specialty occupation petitions may be more consistent in the future.

For additional data on H-1B filings by year, including employers, employment locations, approvals, and denials, check out USCIS’s H-1B Employer Data Hub.

Is My Position Specialty Occupation Caliber?

A specialty occupation position is one which involves the performance of services that require the theoretical or practical application of certain highly specialized knowledge gained from completion of a bachelor’s degree or higher in a specific specialty, or its equivalent. To determine whether the position qualifies as a specialty occupation, H-1B regulations require the offered H-1B job to satisfy one of the following four criteria:

• The normal minimum requirement for the position is a bachelor’s degree or higher (or its equivalent);
• The degree requirement is common in the industry for comparable positions;
• The employer’s typical positional requirements and hiring practices include a bachelor’s degree requirement; or
• A bachelor’s degree is typically required for the offered position because the position and its responsibilities are so highly specialized and complex that they necessitate performance by an individual with a relevant degree.

In addition to the position qualifying as a specialty occupation, the beneficiary must also be qualified to perform specialty occupation services. Here too, H-1B regulations require the beneficiary to meet at least one of the following four criteria:

• Possession of a U.S. bachelor’s degree or higher that is required by the specialty occupation position and is from an accredited college or university;
• Possession of a foreign degree that has been determined to be equivalent to a U.S. bachelor’s degree or higher from an accredited college or university. This degree must also be required by the specialty occupation position;
• Possession of an unrestricted State license, registration, or certification authorizing practice of the specialty occupation; or
• Possession of education, specialized training, and/or progressively responsible work experience that is the equivalent of a U.S. bachelor’s degree or higher. The specialty expertise gained from the relevant work experience must be recognizable and demonstrable.

Further information on H-1B eligibility and qualifications can be found in the FAQs section below. But consulting your employer and immigration counsel may be required in complex cases.

Impact of Opting for Premium Processing Service

I-129 petitions like the H-1B can be filed under regular processing or premium processing. If premium processing is requested, the period of review for your petition will be accelerated to 15 business days.

To utilize the premium processing service, a petition needs to be filed with a request for premium processing via Form I-907 and payment of a $2,500 service fee. Petitions filed under regular processing may be upgraded to premium processing after receipt through the same method.

Premium processing service does not impact any other facet of the H-1B system, e.g., lottery selection, approvability, start date, etc.

What Will an H-1B Visa Petition Cost in 2023-2024?

H-1B fees are subject to change but fee increase announcements are made in advance to allow all parties sufficient time to prepare.

The 2020—2021 (FY2021) cap season marked the beginning of the H-1B registration process, adding a new $10 fee to the H-1B fee schedule. H-1B applicable fees are as outlined below. 

As there are several fees, exceptions/caveats for fee payments, preferred methods of payment (lump sum vs. separate checks), and required payors, retention and consultation of immigration counsel is advised.

So You’ve Been Selected for the H-1B Lottery, Now What?

First, USCIS will notify petitioners or their representatives to check their myUSCIS account for a status update on March 31, 2023. If selected in the lottery, your status will read “SELECTED.” You will also receive the following communication from USCIS:

Second, petitioners may begin filing H-1B petitions on April 1, 2023. The exact 90-day time frame within which you may file will be indicated on Form I-797C as shown in the graphic above. Only one petition may be filed by an employer for the selected beneficiary.

Third, once your H-1B petition is filed with the appropriate service center, the service center will send a receipt notice to confirm receipt and commencement of processing.

Fourth, an immigration officer will review the petition to determine whether it is approved or denied.

For approved H-1B cap-subject petitions, H-1B employment and status begin on October 1, 2023 even if cases are approved well before that date.  After approval, you will receive a notice that resembles the following:

NOTE: Your options for working in or entering the U.S. prior to October 1, 2023 depend on your location (in the U.S. vs. outside the U.S.) and current nonimmigrant status (e.g., F-1, L-1, O-1, etc.) at the time of filing.

• Beneficiaries in the U.S. working under another nonimmigrant status that will not expire before October 1 – You may continue to work in the U.S. in your current nonimmigrant status as long as you maintain that status and it remains valid.
• Beneficiaries in the U.S. working under another nonimmigrant status that will expire before October 1 – You may continue to work in the U.S. in your current nonimmigrant status until it expires. An extension petition should be filed on your behalf before this expiration date or before your 60-day grace period ends, otherwise you may need to leave the country. If this happens, you may re-enter in H-1B status on October 1 to begin working for your H-1B employer.
• Beneficiaries outside of the U.S. – You will need to make an appointment at your local U.S. Consulate or Embassy and proceed with consular processing to obtain your new H-1B visa stamp.
• CAP GAP – Available to F-1 students with a cap-subject petition and change of status request timely filed on their behalf. F-1 status and current employment authorization are extended to September 30, 2023 if the previous authorizations would have otherwise lapsed by then, filling the “gap” in time between the end of F-1 status and the beginning of H-1B status.

As discussed throughout, the overall immigration process is very detailed and precise. USCIS also has its own preferences that it advises all parties follow to ensure the H-1B process is as efficient as possible. Failure to follow these guidelines may result in a return or rejection of your petition, request for additional evidence, denial, or visa revocation some years later. There are also eligibility concerns that may not be readily apparent to the average person. Therefore, it is recommended that employers engage immigration counsel to help avoid filing pitfalls and determine if there are any potential roadblocks in a beneficiary’s case.

Please refer to the Frequently Asked Questions (FAQs) section below to see examples of some common inquiries and challenging cases that ILG can help you with during the H-1B process.

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FAQs

Q: What is consular processing? – Consular processing is a method of application for admission to the U.S./visa stamping available to those outside of the U.S.

• Beneficiaries must first complete the DS-160 online application, pay the required fee, and schedule an appointment before going to the consulate for the visa interview.
• Remember to print out the confirmation page and payment receipt after completing the DS-160.
• At the interview, you will be asked questions about yourself, your job, your employer, and your travel history. Be honest and concise unless further explanation is needed. If you do not recall some information or do not know an answer, it is okay to let the officer know that.
• Do not lie during this interview as your responses or misrepresentations may impact future immigration proceedings.

Q: What is a prevailing wage? – The prevailing wage is the average wage being page to individuals in the same or similar jobs. This is typically the minimum wage allowable for nonimmigrant visas.

• The H-1B visa process requires employers to pay salaries at or above the applicable wage level as provided by Bureau of Labor Statistics based on the job, its complexity or seniority, and location. The Department of Labor, via the Occupational Employment Statistic (OES) program, determines the prevailing wages for each wage level and certifies the offered role and wage during the Labor Condition Application (LCA) process. These steps must occur before an H-1B petition can be filed.

Q: What is a Labor Condition Application (LCA)? – The LCA is the form that outlines the particulars of the nonimmigrant employment being offered and certifies that this nonimmigrant employment will not undercut or harm the U.S. labor market.

Key data included in the LCA:

• Type of visa classification (H-1B)
• Job title
• SOC (ONET/OES) code and occupational title
• Period of employment
• Total workers being requested for certification by this LCA
• Employer’s name and contact information
• Name and contact information for employer’s attorney or agent
• Worksite address(es)
• Prevailing wage, wage rate/range, and wage level
• Attestations about the offered role and the U.S. labor market confirming that 4 labor conditions have been met

• Employer attestations made in the LCA:
  • Prevailing Wage Requirement – The H-1B employee will be paid at or above the prevailing wage as defined by the geographic location of the worksite.
  • Working Conditions – Hiring the H-1B worker will not negatively affect working conditions or working arrangements for the company’s other employees in similar roles.
  • Labor Disputes – The proposed worksite is not experiencing a strike, lockout, or other work stoppage on the day the LCA is filed.
  • Notice – As of the date of the LCA, other employees working for the petitioner have been notified of the planned H-1B application and the petitioner’s intent to hire the H-1B worker.
• LCAs are submitted to the Department of Labor in advance of the H-1B petition filing. The Department of Labor will review the submitted LCA within 7 business days and, if there are no issues with the LCA, deliver a certified copy back to the employer. At that point, the employer may continue with preparing and filing the H-1B petition.
  • NOTE: A single LCA can be used for an individual worker or multiple workers in identical roles (blanket LCA). But, every H-1B petition must be accompanied by a certified and signed LCA.

Q: What is the 60-day grace period and how does it apply to H-1B workers?

• Immigration regulations permit certain nonimmigrant workers, including those in H-1B status, to remain in the U.S. for up to 60 calendar days or until the expiration of their I-94, whichever is sooner, after job loss/termination, resignation, or expiration of status. This allows the individual time to look for a new job, change status to another visa classification, or wrap up matters and prepare to leave the U.S.
• Individuals in the 60-day grace period do not possess work authorization. But since they are in an authorized period of stay, they will be considered to have maintained their status.

Q: I am the founder, co-founder, or sole proprietor of my company. How can I obtain an H-1B as the owner of the business?

• While USCIS does not permit the employer and employee listed on an H-1B petition to be the same individual, primary business owners can obtain H-1B visas in certain cases.
• One option is to establish a separate board of directors who will act as the employer and pay your salary rather than you paying yourself. If your company already has a board of directors, review your operating agreements to determine if the board may pay your salary. This option may still face some challenges, so consulting immigration counsel is advised.

Q: Can I start a business on an H-1B?

• Yes, but you must first establish a separate entity within the company that is not controlled or run by you. This may be done either by setting up another entity with a board of directors, as discussed above, or a CEO. Either the board of directors or the CEO will be responsible for the terms and conditions of your employment, e.g., salary, tasks, type of employment status, etc. Once those processes are complete, the entity can petition on your behalf. You may not petition for yourself.

Q: Can a small business or company with low revenue employ an H-1B worker?

• Yes, as long as the company is able to pay the H-1B fees required of a petitioning employer in addition to the prevailing wage indicated on the certified LCA.

Q: Can I apply for an H-1B visa/file an H-1B petition by myself?

• A U.S. company must offer you a job in a specialty occupation and then apply for the H-1B visa on your behalf.
• Separate considerations apply if you are a business owner. Please refer to prior FAQs on this point.

Q: Does my U.S. degree have to be from a certain type of university or college for “master’s cap”?

• The degree that is the basis of your eligibility must be from a U.S. institution of higher education that was accredited by an appropriate accrediting agency, as recognized by the Department of Education, at the time your degree was earned.
• As of August 19, 2022, the Accrediting Council for Independent Colleges and Schools (ACICS) is no longer recognized as an accrediting agency by the Department of Education. This means that schools that were solely accredited by ACICS are no longer accredited in the eyes of the Department of Education and any degree conferred by such an institution on or after August 19, 2022 will not comply with H-1B regulations.
• If you have any questions about the accreditation status of your U.S. university, and therefore your eligibility for the master’s cap, please use the Department of Education’s Database of Accredited Postsecondary Institutions and Program’s search feature for your university’s accreditation data or contact your university directly.

Q: Am I eligible for an H-1B visa if my degree isn’t from a U.S. college or university?

• If you hold a foreign degree that is the equivalent of a U.S. bachelor’s degree or higher, you can be eligible for the “regular cap.” The U.S. degree requirement applies to the “master’s cap.”

Q: What if I don’t possess a bachelor’s degree at all? Can I still qualify for the H-1B visa?

• This depends on whether your other credentials can be considered equivalent to a 4-year bachelor’s degree in the U.S.
• Equivalency is determined by the 3:1 rule which states that 3 years of relevant work experience is equal to 1 year of academic study.
• Equivalency can be obtained in two ways:
  • Less than four years of undergraduate study (i.e., uncompleted bachelor’s degree or completed 2-year associate’s degrees) + relevant work experience.
  • At least 12 years of relevant work experience.

Q: I am a teacher. Does my position qualify as a specialty occupation for H-1B purposes?

• Teaching positions at the primary and secondary school level are considered specialty occupation roles, making these positions eligible for the H-1B visa. But in addition to the standard specialty occupation criteria, teachers must also possess the requisite licenses or satisfy all licensing requirements if licenses are not yet possessed.
• Also, public school teachers are typically unionized and, therefore, subject to a Collective Bargaining Agreement which impacts their wages and working conditions. These conditions are indicated in the LCA.

Q: What employers are exempt from the H-1B cap?

• Universities and other institutions of higher education, as defined by immigration regulations, related non-profit entities, non-profit research organizations, and government research organizations may file cap-exempt petitions that are not subject to the annual quota. These petitions also need not adhere to the H-1B registration and lottery timelines and can be filed any time throughout the year.

• If my employer files multiple H-1B registrations and petitions on my behalf, will that increase my chances for approval?
  • A single employer can only submit 1 registration and 1 petition for each beneficiary. Submission of multiple (or duplicate) registrations and petitions by the same employer for the same beneficiary will result in a denial or revocation.

Q: Are USCIS fees refundable?

• Only in certain circumstances, such as:
  • An unnecessary form was requested.
  • An inapplicable fee was assessed.
  • Excess fees were accidentally submitted.
  • Premium processing service is requested but USCIS fails to adjudicate the case within the required processing window.

Q: Where will the H-1B petition be filed?

• Filing addresses for I-129 petitions, including the H-1B, can be found here on the USCIS website. To determine the appropriate service center, check the work location indicated on the LCA and Form I-129.
• Your immigration counsel can also assist with this determination if you have additional questions or if the proposed worksite is not straightforward.

Q: Can I work anywhere in the U.S. after approval?

• Your H-1B work was certified and authorized for a specific geographical location at the time of approval. The wage level listed on the LCA is tied to this location as well.
• Should your worksite change, an amendment must be filed to certify and approve the new location.
• If the worksite change is within reasonable commuting distance or the same Metropolitan Statistical Area (MSA), an amendment may not be necessary. It is advised that you consult immigration counsel in cases like this and all others before material changes to the H-1B employment happen.

Q: If there is a 90-day window to file the H-1B petition after selection, is there any benefit in preparing the petition as early as possible?

• By preparing early you afford yourself the time and opportunity to manage known events (e.g., ordering translations or education evaluations) or tackle unexpected obstacles and not miss deadlines. You may also save money by preparing early and not having to rely on expedited services or premium processing. Early preparation also alleviates some of the anxiety involved in the H-1B process.

Q: My employer filed H-1B petitions for me and a few co-workers on the exact same day. We have identical educational backgrounds and will be performing the same role. Their cases have already been approved but mine is still pending. Why is mine taking so long?

• USCIS officers review cases on a case-by-case basis, meaning each case is reviewed on its own merit without regard for prior, similar petitions. There is also no guarantee that the same officer or service center will review all petitions filed by the same employer.
• Also, depending on service center workload, some cases may be transferred to a different service center, which will extend the adjudication period. If an employer wishes to have all of their cases reviewed within the same time frame, they can opt for premium processing.

Q: What is the validity period for an H-1B visa?

• USCIS grants the H-1B visa for up to 3 years for the initial period of stay. Extensions are permitted after the initial 3 years for a maximum of 6 years.
• In certain situations such as prior employment in L-1 status, USCIS may grant less time. In others, like when an I-140 petition is pending or when a beneficiary has spent time outside of the U.S., USCIS may permit extensions beyond the 6^th