Miles & Stockbridge is preparing for what we hope will be a fortuitous H-1B lottery season for cap-subject petitions. The United States Citizenship and Immigration Services (“USCIS” or the “Service”) announced last week the H-1B cap registration period for FY 2024 (Oct. 1, 2023 to Sept. 30, 2024) will run from March 1 through March 17. The H-1B registration program, as it has been administered since FY21, allows employers to register with USCIS for the H-1B lottery without incurring substantial fees or providing the volume of documents required to submit a complete H-1B petition – a win-win for employers and foreign nationals!

USCIS conducts a random H-1B lottery because the volume of H-1B petitions/registrations it received exceeds the annual statutory limit in the H-1B classification. The Service is authorized to grant up to 85,000 H-1B cap-subject petitions per year, 20,000 of which are set aside for foreign nationals who have earned a U.S. master’s degree or higher. After H-1B registrations are received and the Service administers the lottery, selected H-1B registrants are then invited to submit a complete petition for consideration by USCIS.

Since the inception of the H-1B registration lottery process, employers have become increasingly interested in the H-1B classification as a vehicle for hiring foreign workers. Indeed, USCIS received over 300,000 registrations in March 2021 (for FY22) and more than 480,000 registrations in March 2022 (for FY23). The recent surge in demand by employers for H-1B workers is depicted below.

(Click here to learn more about H-1B petitions, relevant requirements and the history of the registration program.)

To identify H-1B lottery candidates, employers should consider reviewing their current and prospective foreign national employee rosters, focusing on:

• Foreign students in the U.S. with F-1 status who are currently working for, or will be hired by, the employer utilizing their Optional or Curricular Practical Training (OPT or CPT) employment authorization
• Current employees working in other non-immigrant statuses who wish to change to H-1B status
• Former employees whom the employer would like to re-hire
• Potential new hires, whether the individual is currently located in the U.S. or abroad

Not all H-1B employers or prospective employees are subject to the annual cap. For example, H-1B extensions, amendments, changes of employer, and certain entities and employees are exempt. In addition, certain foreign nationals may be eligible for nonimmigrant visa categories other than H-1B (e.g., TN, L-1, E, and O-1A).

Now that the registration period is confirmed, employers should work with immigration counsel to develop strategies to successfully navigate the H-1B lottery and subsequent application period.

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.