The H-1B visa is a non-immigrant work visa used more than any other work visa for employment of foreign nationals at U.S. companies. As a complex H-1B visa system is ever changing and difficult to navigate, it is important to have a good relationship with an immigration attorney who is able to follow and guide employers through the minefield of changes. Below, our friends at Dagher Khraizat Immigration Law explain the requirements of the H-1B.
These requirements are:
- That the position sought to be filled by the company requires according to the Department of Labor and USCIS standards a bachelor’s degree to perform the duties.
- That the foreign national has at the minimum a U.S. 4-year bachelor’s degree or the foreign equivalent of a bachelor’s degree as determined by a recognized credential evaluation agency.
- The subject matter studied for the degree held by the foreign national must be related to the performance of the duties of the position.
An H-1B quota of 65,000 H-1Bs and an additional 20,000 H-1B for prospective employees with U.S. advanced degrees for each USCIS fiscal year (October 1st to September 30th ) causes a lottery system for the visas. The lottery is held on April 1st of each year and the H-1B start date for the employee chosen in the lottery begins on October 1st of each year. Registration for the H-1B lottery this year for the 2025 USCIS fiscal year will begin March 6th at 12pm and continue until March 22nd at 12pm.
During the 2023 H-1B lottery it became very apparent that larger corporations were gaming the system. There were a total of 758,994 eligible registrations for essentially 85,000 H-1B visa numbers. The large corporations were taking legal advantage of a rule that allowed multiple registrations for a single employee as long as the registrations were each under a different company tax identification number. This gave large employers an advantage in having their sought-after employees selected in the H-1B lottery. The employer would then file an H-1B petition for the chosen employee and after it was approved, file another H-1B petition to transfer that employee to the company and the position that they wanted the employee in.
In 2024 USCIS is instituting an employee (beneficiary) centric system so that each beneficiary can be chosen only once, no matter how many registrations for that individual exist by different employers. This will ensure beneficiaries from smaller employers with only one registration will have the same chance as being chosen as those with multiple employer entries. An employee now chosen in the H-1B lottery will have to choose which employer is their petitioner. Whether this new system works remains to be seen, however, immigration attorneys are hoping it will be an improvement.
Another large change for this year’s H-1B lottery is the rolling out of a new USCIS employer online filing system in which employers will create organizational accounts allowing more of their human resources and management to have access to the accounts. USCIS has provided training for employers for account creation and usage. Information can be found here. In addition, online H-1B filing becomes available on April 1, 2024. Paper H-1B filings are still an option but will require the April 1, 2024 new H-1B forms and will have new filings address at USCIS Lockboxes. Finally, a new fee systems is also in effect as of April 1, 2024. Therefore, the potential for rejection of H-1B petitions is high if the employer or the immigration attorney are not paying close attention to all of the changes. Good luck to all in the 2025 fiscal year H-1B cap season.
