H-1B Lottery and Highest Wages: Will Higher Salaries Increase Your Chances?

Navigating Immigration Queries for Tech Professionals: A “Dear Sophie” Update

This is another installment of “Dear Sophie,” a dedicated advice column focused on addressing immigration concerns relevant to those working within the technology sector.

According to Sophie Alcorn, a Silicon Valley-based immigration lawyer, the inquiries received are instrumental in disseminating crucial information. This knowledge empowers individuals globally to overcome geographical limitations and achieve their professional aspirations.

Whether you are involved in human resources, are a company founder, or are actively seeking employment in Silicon Valley, your questions are welcome. Sophie Alcorn invites submissions for consideration in her upcoming column.

Exclusive Access for TechCrunch+ Members: Subscribers to TechCrunch+ gain weekly access to the “Dear Sophie” columns. A 50% discount is available on one- or two-year subscriptions using the promo code ALCORN.

Dear Sophie,

I completed my degree in December and am presently employed under OPT at a nascent biotechnology company. I am uncertain regarding my employer’s familiarity with the H-1B lottery procedure and whether they intend to include me as a candidate.

I have been informed that the upcoming lottery will not prioritize candidates based on salary levels. Could you please share any additional information I should be aware of?

— Gifted Grad

Dear Gifted,

Your proactive approach to the lottery is commendable! Recently, I engaged in a discussion concerning the evolving landscape of immigration, encompassing topics such as work, climate change, and more, with Jamais Cascio, a futurist and the creator of the BANI Framework.

This podcast provides valuable insights into the broader context of global high-skilled immigration and the emerging trends impacting the U.S. labor market.

Key Considerations for H-1B and Legal Matters

For all matters pertaining to the H-1B visa and other legal requirements, it is strongly advised that your employer collaborate with a seasoned immigration attorney.

An experienced legal professional can effectively guide you through each stage of the petition process, ensuring compliance and maximizing your chances of success.

Important Note: Seeking expert legal counsel is crucial for navigating the complexities of U.S. immigration law.

H-1B Lottery to Remain Random for Now

The upcoming H-1B visa lottery in March will continue to utilize a random selection method, at least in the short term. A federal court ruling in September overturned a final rule from the U.S. Department of Homeland Security (DHS).

This rule, which governs the U.S. Citizenship and Immigration Services (USCIS), aimed to shift the H-1B lottery from a randomized system to one prioritizing applicants with the highest proposed wages.

Such a wage-based selection process would likely have created challenges for early-stage startups with limited funding and recent university graduates.

These groups generally receive entry-level salaries, potentially hindering their chances of selection.

Impact on Selection Rates

An analysis conducted by the National Foundation for American Policy reveals a significant impact of the selection method.

International students and recent graduates are 54% more likely to be selected for an H-1B visa under a random lottery compared to a wage-based system.

Future Possibilities

Despite this setback, the Biden administration has expressed support for a wage-based H-1B lottery.

Therefore, the Department of Homeland Security may revisit and attempt to implement this change in the future.

H-1B Visa Lottery Registration

The H-1B visa process necessitates employer sponsorship. Therefore, it’s crucial to initiate discussions with your employer regarding sponsorship opportunities promptly to allow for adequate preparation.

If your organization doesn't currently retain immigration counsel, securing an attorney is a vital first step. This legal professional will guide your company through the process of establishing an online account with USCIS.

Account Creation and Registration Fees

Through this account, your employer will register you, alongside any other prospective candidates. A non-refundable fee of $10 will be required for each candidate submitted for registration.

It is imperative that your employer refrains from submitting any candidate’s registration multiple times. Duplicate submissions will automatically lead to disqualification from the H-1B application process.

Registration Timeline

USCIS has not yet publicized the official start date or duration of the H-1B lottery registration period. However, based on previous years, it is anticipated to commence sometime between early and mid-March, with a registration window lasting several weeks.

Anticipated Registrant Numbers

As the impact of the pandemic diminishes, an estimated 320,000 individuals are expected to participate in the H-1B lottery this March. This represents an increase compared to the approximately 309,000 registrants from the March 2021 lottery.

This increase suggests heightened competition for available visas. Preparation and timely action are therefore essential for a successful outcome.

The H-1B Lottery and Selection Timing

Individuals possessing a master’s degree or a higher academic qualification demonstrate a marginally increased probability of selection within the H-1B lottery compared to those holding only a bachelor’s degree. The United States Citizenship and Immigration Services (USCIS) aims to fulfill the yearly quota of 85,000 H-1B visas, with 20,000 specifically allocated for applicants with advanced degrees.

The selection process involves a randomized draw of registrants, initially to satisfy the 65,000 H-1B application requirement, followed by a separate draw from the remaining pool of registrants with master’s degrees or higher to reach the 20,000 visa allocation.

Understanding Selection Odds

Generally, beneficiaries can anticipate approximately a one-in-four chance of being chosen. Neither the country of birth nor citizenship status influences the lottery’s outcome. USCIS will notify those selected by March 31st, granting employers a timeframe until June 30, 2022, to submit the H-1B petitions.

Eligible H-1B beneficiaries are permitted to commence employment starting October 1, 2022, at the earliest possible date.

Multiple Lottery Draws and Future Opportunities

It is important not to be discouraged by an unsuccessful outcome in the initial March lottery. The events of 2021 highlighted the potential for rapid changes; USCIS conducted three separate lotteries – in March, July, and November – due to an insufficient number of qualified H-1B petitions from initially selected beneficiaries.

STEM OPT Extension provides additional opportunities. If you qualify for and secure a two-year STEM Optional Practical Training (OPT) extension following your initial OPT period, your employer can register you for the H-1B lottery in March 2023.

Should you remain unselected in the 2022 lottery, further registration is possible in March 2024 if you are not chosen in the 2023 lottery. Furthermore, you may qualify for “Cap Gap” work authorization following the expiration of your OPT.

Key Considerations

• A higher degree increases your chances.
• Selection notifications are sent by March 31st.
• Multiple lottery draws can occur.
• STEM OPT extensions offer continued eligibility.

Submitting the H-1B Petition

A guiding principle my father, also an immigration lawyer, frequently emphasized was the simplicity of the H-1B process. He likened it to a three-legged stool, stressing that all three supports are essential for stability.

A successful H-1B petition requires demonstrating three key elements:

• Company Eligibility: The petitioning company must be a legitimate, established entity adhering to all legal and tax requirements. A clear employer-employee relationship and the financial capacity to meet the prevailing wage for the position are also crucial.
• Job Qualification: The offered position must satisfy all legal criteria, considering factors like job title, responsibilities, and the necessary educational background or work experience.
• Candidate Qualification: The H-1B applicant must possess the appropriate education and/or experience to perform the job duties, while also remaining compliant with all relevant immigration regulations.

Inquiries regarding the eligibility of pre-revenue startups to file H-1B petitions are common. The answer is affirmative.

Even without current revenue, alternative evidence can be presented to USCIS to establish the company’s operational status and its ability to fulfill the prevailing wage obligation.

Further insights into the nuances of a strong H-1B petition, including best practices and common pitfalls, can be found in my podcast episode titled “What makes a strong H-1B petition.”

Contingency Plans for H-1B Visa Applications

Should your initial H-1B lottery registration prove unsuccessful, your employing startup should explore the possibility of a concurrent, cap-exempt H-1B petition. These petitions can be filed throughout the year, offering a potential pathway to work authorization.

Further details regarding cap-exempt H-1B visas are available in this previous "Dear Sophie" article, and alternative visa options for H-1B applicants are also worth investigating.

Maintain a positive outlook – you are well-equipped to navigate this process!

Sophie

Do you have a question for Sophie? Submit it here. Please note that submissions may be edited for conciseness and clarity.

The guidance presented within “Dear Sophie” is intended for informational purposes only and should not be construed as legal counsel. For a comprehensive understanding of the limitations of “Dear Sophie,” please review our complete disclaimer. Direct inquiries can be addressed to Sophie at Alcorn Immigration Law.

Sophie’s podcast, “Immigration Law for Tech Startups,” is accessible on all popular podcasting platforms. She is currently accepting applications from individuals interested in appearing as guests!