Last Chance to Register for the 2022 H-1B Visa Lottery!

You may remember getting an HR Tip of the Week recently about registering employees for the H-1B visa lottery. Well, the time has come, and registration is open! If you have any foreign nationals working for your company, now is the time to assess their work authority and determine whether now is the time to pursue an H-1B visa. Registration is open until March 25, 2021, at noon (Eastern time). Below is a quick refresher on H-1B visas and how the application to get one works.

Background: What is an H-1B Visa?

Generally, an H-1B visa is available to employers in order to allow foreign nationals to work up to 6 years in the United States (longer if a timely-filed green card application is pending) in a specialty occupation that requires a theoretical and practical application of a body of highly specialized knowledge. The foreign national must meet the minimum qualifications for such a specialty occupation, as demonstrated by obtaining a bachelor’s degree or higher (or its equivalent in work experience) in the field of study required for entry into the specialized occupation. H-1B specialty occupations may include fields such as science, engineering, and information technology. The H-1B visa is appropriate for bringing highly skilled workers, who have matching degrees, to work in jobs that require such highly skilled degrees. As you can tell—the degree is necessary to obtain an H-1B visa.

Timing: When Should I Submit for the H-1B Lottery?

Answer: Now!!! You have until March 25, 2021, at noon Eastern.

Because the demand for H-1B visas far exceeds the number of H-1B visas available, USCIS uses a lottery system to determine which individuals may even submit petitions for H-1B visas. Potential petitioners must first set up a USCIS account and register for the lottery. Then, if selected, they have 90 days from the notice of selection to submit their petition and all the related documentation. The fee for registration is $10. The registration period this year is March 9-25 (noon ET), 2021, with a start date of October 1, 2021. Companies that want to sponsor individuals for new H-1B visas must submit their registration for the lottery

The chance that your employee or prospective employee’s petition will be selected in the lottery varies depending on the number of applications—there is nothing anyone can do to improve their chances (bummer, we know!). If your registrant is not selected, they will have to wait until the following year to try again.

However, the chances of selection in FY 2023 may be easier to predict. On January 7, 2021, the Department of Homeland Security (DHS) issued a new rule that prioritized registrants based upon their wage rate, instead of using a random lottery system. This means that foreign nationals with a higher prevailing wage rate will have a better shot at selection, while those at the lower end of the prevailing wage rate have little to no chance at selection. You may remember receiving an HR Tip of the Week on this new rule when it was first proposed last fall. While it was initially set to become effective this year, on February 4, 2021, USCIS and DHS announced that they would delay the implementation of the new rule until December 31, 2021, citing concerns with staffing, training, and processing. However, employers can expect to see a change in the selection process for FY 2023, unless the Biden administration eliminates the forthcoming change.

How Should I Prepare to Submit An H-1B Visa?

Since registration has already begun, employers need to act fast in gathering the required information needed to register for the lottery. Even employees whose work authority is not set to expire this year are eligible to register, and it is recommended they do. To register for the lottery, individuals will need the following information:

• Legal name of the H1B applicant

• Gender of the applicant

• If the applicant is eligible for US Masters H1B Quota

• Date of birth

• Country of birth

• Country of citizenship

• Passport number

Accordingly, in the event an attorney is hired to handle the registration, this is the information they will need, as well. While there is no guarantee that your registrant(s) will be selected, it is important to follow all directions make sure the registrations are as accurate as possible. Employers should also plan to complete the necessary paperwork for the petition ahead of time to ensure that, if selected, the petition can be submitted accurately and timely.

Given the complexities of filing H-1B visas, legal counsel is normally necessary.

Thompson Coe and myHRgenius Tip of the Week is not intended as a solicitation, does not constitute legal advice, and does not establish an attorney-client relationship.