There are big changes in how H-1B visa applications will be submitted this year for the Financial Year 2021 H-1B cap season. Normally, cap-subject H-1B visa applications are filed on April 1st, and then, if more applications are received than allowed under the annual H-1B visa cap, a lottery is conducted to select the applications that will be processed. The H-1B will then normally be adjudicated before the start date of October 1st.
This year, however, the process will be completely different. U.S. Citizenship and Immigration Services (USCIS) will allow employers to register foreign national employees online from March 1st to March 20th. An electronic lottery will then be conducted and the results will be announced by April 1st. Registration will only cost $10.00 and only limited information will be needed about the employer and the employee, making it easier and cheaper for an employer to register an employee for the lottery. If the registration is selected in the lottery, there will be a window of at least 90 days in which the employer may file the application. However, it may not ultimately be easier to get an H-1B visa! Many challenges and questions remain, as we discuss below:
1. Can or should employers register employees that they may not want to sponsor for an H-1B visa? Since it is easy to register them, perhaps employers will want to register potential employees that they currently may not want to sponsor, just in case they should decide to do so later.
If employers register employees who they don’t intend to sponsor this would fill up the H-1B quota with registrations that would never be used, and USCIS will flag employers that do not file H-1B petitions for selected foreign nationals for possible fraud investigations. Therefore, employers should be sure to register only employees that they intend to sponsor and that are qualified for H-1B visas.
2. Can a foreign national be registered for the lottery more than once?
Yes, a foreign national can be registered more than once, but only if different employers register them for different job opportunities. Therefore, foreign nationals who are looking for jobs in the United States may want to apply for several different jobs with multiple H-1B employers who may want to sponsor them at the same time to increase the employee’s chances of being selected.
3. If a foreign national is selected in the lottery does that mean that their H-1B visa will be approved?
Unfortunately, no, selection in the lottery only means that the employer may now file an H-1B petition for the selected foreign national. The H-1B petition must still be adjudicated by USCIS, which may take four to six months or more, and the adjudication process has become increasingly tough in recent years. This is why you should still plan ahead to file the strongest case as early as possible after selected, as discussed below.
4. Will the new online registration process and electronic lottery make it easier or more difficult to get an H-1B visa this year?
It remains to be seen how the online lottery system will affect the chances of receiving an H-1B visa, but it may not ultimately make it easier. The new registration process only affects the lottery, and the simplified process may actually encourage employers to register more potential employees than ever, actually reducing the chances of being selected. In addition, it is likely that the adjudication process may continue to get stricter and more difficult under the Trump administration. See our strategies for success below.
5. If the new lottery system won’t make it easier to get an H-1B visa, what factors may increase the chances of getting an H-1B visa approval?
The answer to this question involves many factors. In recent years USCIS has required that the job duties of the H-1B job be very closely related to the university degree that the H-1B beneficiary has. USCIS has also scrutinized applications from small or young companies, and H-1B visa applications for jobs that pay lower salaries. An experienced immigration attorney can discuss the strategies that may increase the chances of H-1B approval. Further suggestions for preparing a strong H-1B application can be found here.
Given the uncertainty caused by the new H-1B process this year, employers and their foreign national employees should still plan ahead to ensure they are ready to register online starting on March 1st, and that they will be ready to file a strong H-1B petition as soon as possible if selected on April 1st. Once the results of the lottery are announced the employer may need to file the H-1B petition very quickly, especially if the potential employee’s status or work authorization is expiring, or if they need the H-1B petition to be approved before the October 1st start date . Discuss the employee’s qualifications for the H-1B visa with your lawyers and start the preparation process early to improve chances of success. Schedule a consultation to discuss the new H-1B registration process and strategies for success with our experienced lawyers.
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