7 Tips on How to Prepare for the Fiscal Year 2021 H-1B Lottery

27. Nov. 2019

Whether you’ve entered the H-1B lottery before, or this is your first attempt, the following tips provide valuable information on what to expect for next year’s cap season.

1. Understand the New Process

In January 2019, USCIS confirmed that a new preregistration system and process is scheduled to take effect for the FY2021 cap season. This new electronic system will require employers to pre-register the candidates they wish to sponsor for H-1B employment. USCIS will then conduct a random selection of all H-1B candidates for 65,000 spots, then a second selection for those with a U.S. master’s degree for the remaining 20,000 spots. Petitions will then be submitted only for those who have been selected. As of November 2019, USCIS has confirmed that a $10 fee will be required for each candidate employers register with USCIS, however no additional details regarding the registration process have been provided.

The benefit of the registration process is that candidates can learn of their selection earlier, and the expenses incurred by employers should be lower as fewer cases will be filed. However, an electronic system poses new potential issues, such as system crashes, errors, and glitches, especially during the first year of the program.

2. Evaluate Your Employer Sponsor

The employer-employee relationship is a key part of the H-1B classification (8 CFR §214.2 (h)(4)(ii)).  When considering an H-1B sponsor, consider whether the company can demonstrate that they have enough work for you to do, that they have sufficient office space and equipment for you, that they are currently operating (conducting business, selling products, etc.), and that they have an organizational hierarchy to provide managerial supervision. For newly formed startups, establishing these points may be more difficult, but generally achievable. USCIS also heavily scrutinizes applications from consulting companies which place employees at third party client sites, where employer-employee relationship is more difficult to prove.

3. Make Sure You’re Maintaining Status

Students in F-1 status account for the majority of candidates for H-1B visas. If you are currently in F-1 status and have not yet graduated, it is important to confirm that you are taking a full-time course load. Additionally, any CPT or OPT employment should be documented through I-20s. Further, be ready to explain how your employment relates to your education if you are in CPT or OPT. Make sure that you have updated your Designated School Official (DSO) with your latest contact and employment information. Candidates in the U.S. on other types of visas should also be able to prove they are maintaining status through proof of current employment (if in employment authorized-status) and a valid I-94 record.

4. Plan Ahead for Travel

If you are currently in the U.S. and plan to change status to H-1B, you must remain in the U.S. when the petition is filed and while it is pending. Exiting the U.S. during this period is considered abandonment of the change of status request. If abandoned, your status will not automatically change to H-1B on October 1st, and you will have to apply for an H-1B visa abroad to re-enter the U.S. in H-1B status. If you have travel plans, confirmed or unconfirmed, inform your attorney as soon as possible.

5. Organize Your Documents

Once you’ve been identified by your employer as a candidate, ILG will request electronic copies of documents from you. Typically, we request educational diplomas and transcripts, passport biographical pages, U.S. visas, and any immigration documents such as I-20s, I-797s, and EAD cards. If family members will apply for dependent H-4 status, your family’s marriage/birth certificates, passport biographical pages and U.S. visas are also needed. You should gather this information ahead of time to identify any missing items you may need to obtain for the application.

6. Expect the Unexpected

Because of the proposed electronic registration system, it’s prudent to anticipate unforeseen glitches in the process that are out of everyone’s control. Moreover, increased scrutiny of all immigration petitions is becoming the standard under the current political administration. The number of RFEs is expected to be significant, and USCIS may have instructed officers to scrutinize specific aspects of cases as they have in the past, which could appear as a trend in the RFEs we receive. While still rare, denials are a possibility more than they were in the past.

7. Research Alternatives

Given the uncertainty of the H-1B lottery and adjudication process, it’s wise to plan for alternatives should you not be selected in the lottery, or if your petition is selected but not approved. If you are applying for a change of status, continue to maintain your underlying status throughout the process. If your time in your current status is running out, consider alternative types of work visas such as the E-3 (for Australians), TN (for Canadians and Mexicans), or O-1 (for individuals of extraordinary ability). Some individuals may also choose to go back to school. You can always re-enter the lottery next year!

Have more questions about the H-1B process? Feel free to contact us today.