On March 27, 2023, USCIS announced that it had received enough electronic registrations to reach the H-1B annual cap FY2024, including the advanced degree exemption (Master's cap). While official statistics regarding the number of registrations submitted vs. that selected have yet to be released, reports across the board indicate a much lower selection rate than in previous years. For those not selected in the H-1B lottery, it is important to assess other nonimmigrant visa and work authorization options.
Background
The H-1B nonimmigrant category allows US employers to hire foreign workers temporarily to fill a specialty occupation role in the US for a specific period, which can be full-time or part-time. The government designates a cap on the number of H-1B visas it issues in each fiscal year. Congress has set the cap at 65,000 visas, with an additional 20,000 available to those who have obtained an advanced degree. The advanced degree exemption is an exemption from the H-1B cap for those who have earned a U.S. Master's degree or higher and is available until the number of exempt beneficiaries exceeds 20,000. Up to 6,800 visas are set aside from the 65,000 each fiscal year for the H-1B1 program pursuant to the legislation implementing the U.S.-Chile and U.S.-Singapore free trade agreements. Unused visas for this group become available for H-1B allocation in the next fiscal year's regular H-1B cap.
Employers seeking to file H-1B cap-subject petitions must first electronically register their company and complete the H-1B registration process online. Only registrations randomly selected by USCIS may file an H-1B cap petition.
When USCIS completes its initial H-1B selection process, employers can check the status of their H-1B registrations online using their MyUSCIS account. If selected, employers were allowed to begin filing their H-1B cap subject petitions on April 1, 2023. Note, if the H-1B registration status reflected online remains as "submitted," the registration remains eligible for selection in subsequent fiscal year selections. Last fiscal year, only one selection was conducted in contrast with previous years.
Below is a summary of the H-1B Registrations and Selection rates for FY2020 to FY2023. Note that the number of registrations received and selected for FY2024 have yet to be released. Based on the record number of registrations received FY2023, coupled with other factors, including the decrease in H4 EAD processing times, H-1B registrations are predicted to exceed 500,000. Selection rates reported on various listservs have indicated selection rates ranging from 12% to 17%.
Fiscal Year | H-1B Registrations Received | H-1B Registrations Selected |
FY2024 | ~500 to 600,000 | ~12 to 17??% |
FY20231 | 483,927 | 127,600 (26%) |
FY20222 | 308,613 | 131,970 (43%) |
FY20213 | 274,237 | 124,415 (45%) |
FY20204 | 201,011 | 85,000 (42%) |
While total registrations have increased in the last few years, the
selection rate FY 2024 seems to have significantly dropped, with
some reporting zero registration selections to date. For the next
fiscal year (2025), USCIS has proposed an increase in the
registration fee from the current $10 to $215. Based on the
increasing demand for H-1B professionals, we must see if the 2050%
stems the tide.
H-1B Alternatives
- TN NAFTA Professional: The United
States-Mexico-Canada Agreement (USMCA), permits qualified Mexican
and Canadian citizens to seek temporary employment in the US to
engage in business activities at a professional level under the TN
nonimmigrant classification. The occupation must be in Appendix 2
of the USMCA's list of professions, which
includes disciplines such as accountants, engineers, lawyers,
pharmacists, and scientists). Canadian citizens can apply for TN
admission directly at a port of entry (POE) on the northern or
southern borders of the US at the time of admission for an initial
period of stay of up to 3 years, while Mexican citizens should
apply for a TN visa directly at a US embassy or consulate. While
the TN visa does not provide the benefit of dual intent as applied
to H-1B professionals, the TN visa serves as an essential visa
solution for many Canadian and Mexican citizens not selected in the
H-1B lottery. TN status may serve as a bridge until the next H-1B
lottery season.
- L-1 Intracompany Transfers: The L-1
intracompany transfer visa permits foreign workers who have worked
for a foreign branch, affiliate, or subsidiary of a US company to
transfer to the US to work in an executive, managerial, or
specialized knowledge capacity. This classification also enables a
foreign company that does not yet have an affiliated US office to
send an executive or manager to the United States with the purpose
of establishing one. The foreign national must have been working
for the qualifying foreign entity for one continuous year within
the three years immediately preceding the petitioner's filing
of the initial L-1 petition or other employment-based nonimmigrant
petition sponsoring the foreign national's services to work for
the qualifying organization in the US5 Qualified
employees entering the US to establish a new office are allowed a
maximum initial stay of one year. All other qualified employees are
allowed a maximum initial stay of three years. Managers and
executives are limited to a seven-year period of stay in the US in
L-1 status, while those admitted to serve in a specialized
knowledge capacity are limited to a total of five years.
- O-1 Individuals with Extraordinary Ability or
Achievement: The O-1 visa is reserved for foreign
nationals of "extraordinary ability" in the sciences,
arts, education, business, or athletics, or extraordinary
achievement in motion picture and television production, and their
essential support personnel. To qualify for an O-1, applicants must prove that
the foreign national is at the top of their professional field.
Such evidence can include scholarly publications, receipt of
nationally or internationally recognized awards, proof of high
salary, etc. An O-1 applicant is allowed a maximum initial stay of
up to 3 years. It is important to consider the updated guidance published by USCIS to support
O-1A petitions for those in STEM fields. USCIS has recognized that
being named on a competitive government grant for STEM research can
be a positive factor toward demonstrating that a beneficiary is at
the top of their field and providing a list of additional examples
of qualifying evidence of extraordinary ability.
- E-1 Treaty Trader/E-2 Treaty
Investor: The E nonimmigrant visa categories
include treaty traders and investors. The employer must share the
same qualifying nationality as the foreign national employee. That
foreign national must be a citizen of a country with a qualifying
treaty with the US.6 In order to qualify, the US
employer must establish a substantial investment (E-2) in the US or
substantial trade between the US and country of nationality (E-1).
The position offered must be of a "managerial or
supervisory" nature or one that requires "essential
skills." The initial period of stay allowed for E-1 and E-2
applicants is two years and the maximum visa validity is up to five
years. There is no requirement for prior qualifying employment with
an affiliated entity abroad.
- J-1 Exchange Visitors: The J-1 nonimmigrant category is for individuals approved to participate in exchange visitor programs in the US, which can range from students to research scholars to camp counselors to physicians. J-1 programs include opportunities for professors, researchers, short-term scholars, students, teachers, etc. To qualify, the J-1 applicant must be sponsored by an exchange program designated by the US Department of State. The J-1 period of stay will depend on the specific program. Note, some J-1 exchange visitors are subject to a two-year home-county physical presence requirement, which would require them to return home for at least two years once the J-1 stay has been completed unless granted a waiver of the requirement.
Other Considerations
- OPT/CPT
- If the foreign national's highest level of education is a Bachelor's degree, consider having them extend their US education to obtain an advanced degree. This extension will allow them to remain in the US to apply for another round in the H-1B lottery. In addition, it increases their chances of being selected in any subsequent lottery using the master's cap.
- Foreign nationals still enrolled in school may qualify for employment through Curricular Practical Training (CPT).
- International students who graduate from a US post-secondary institution may be eligible for 12 months of Optional Practical Training (OPT) and employment in a field related to their degree. Those who have graduated with a degree in a STEM field may extend the initial period of OPT for an additional 24 months when working for an E-Verify enrolled employer.
- B-1 in lieu of H-1B: If the foreign national is coming to the US to work in an H-1B eligible position, but will remain employed and paid by a foreign company, they may be suitable for a B-1 in lieu of H-1B visa. To qualify for a B-1 visa, note that a foreign firm must customarily employ the employee. A subset of the B-1 visa, the B-1 instead of the H-1B visa allows a foreign national to engage in short-term employment or training in the US so long as they engage in work qualifying as a specialty occupation. This alternative must be carefully reviewed to determine eligibility and the policy of consular posts.
Footnotes
3. https://www.uscis.gov/archive/fy-2021-h-1b-cap-petitions-may-be-filed-as-of-april-1
5. See 9 FAM 402.12-4.
6. https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/fees/treaty.html
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.