US Citizenship and Immigration Services (“USCIS”) will conduct its H-1B (“specialty occupation worker”) lottery for cap-subject candidate employees in March 2022. The H-1B visa category allows for temporary work authorization for individuals in occupations which require (at a minimum) a bachelor’s degree in a discipline related to the occupation. The H-1B visa category is statutorily limited to 85,000 new approvals annually (65,000 for the so-called “regular cap” and 20,000 for the “advanced degree cap”). Registrations have historically and consistently outnumbered the total number of available approvals. For this reason, USCIS conducts a lottery to determine which employees an employer will be eligible to petition for and seek H-1B visa status. The odds of selection will depend on the total number of registrations and the individual employee’s academic background. Regular cap registrations have historically had about a 25% chance of selection and advanced degree cap registrations (for those holding a US master’s degree or higher) had about a 33% chance of selection. In the past two (2) years, USCIS has conducted a subsequent lottery in August using re-captured , unused selections. Last year, USCIS conducted a third lottery in November. These additional runs of the lottery increase the overall odds of an individual’s selection, albeit nominally.
Employers seeking to petition for qualifying employees for this employment authorized visa status will be required to register each employee in the lottery. Exact dates and additional details are expected from USCIS by the end of January 2022, but the registration window is expected (as it has in prior years) to open during the second week in March and run approximately two (2) weeks. Only registrations completed (including payment of the $10 registration fee) before the close of the registration period will be considered. USCIS will then conduct the lottery and notify registrants and representatives during the last week in March. Employers may begin filing petitions for selected individuals April 1 for employment start dates of October 1, 2022, i.e., the start of Federal Fiscal Year 2023.
Because the registration and selection system truly is a lottery, employers and their employees who may need H-1B visas are advised to connect with counsel early on to begin case assessment and develop possible alter-native strategies in the event the employee is not selected in the lottery. Early assessment and advising is particularly important for F-1 students employed under Optional Practical Training who may have only a very limited number of “plays” in the lottery before exhausting their employment authorization.
Please contact someone at Dentons Cohen & Grigsby immediately to ensure that the employee will be included in this year’s lottery or to discuss any questions you may have regarding the above information.
