FY2025 H-1B Lottery Kick Off

It’s time for the newly updated H-1B Visa Lottery! Upon introducing the final rule which initiated many changes to the fiscal year 2025 (“FY25”) H-1B Lottery, US Citizenship and Immigration Services (“USCIS”) announced the initial registration period for the FY25 H-1B cap will begin at 12pm ET on March 6, 2024, and run through 12pm ET on March 22, 2024. During this registration period, prospective petitioners and representatives will be able to submit their H-1B registrations using online accounts and pay the required $10 fee for each registration submitted on behalf of each beneficiary.

In line with the electronic registration system that has been in place for the past few years, US employers seeking to file an H-1B on behalf of foreign nationals they are seeking to sponsor will be required to submit an individual electronic registration for each cap-subject H-1B candidate. More than one US company may submit registrations for the same individual, however, the new “beneficiary-centric” lottery system will select individual beneficiaries, as opposed to company submissions. To ensure that all beneficiaries have the same chance of selection, the “beneficiary-centric” system requires that registrations be tied to the foreign national’s passport or travel document.

Starting on February 28, 2024, US employers and their representatives will be able to set up new organizational accounts or update their existing accounts in the USCIS online system platform. The new USCIS organizational account system will “allow multiple individuals within an organization, such as a company or other business entity, and their legal representatives to collaborate on and prepare H-1B registrations.”  Once the registration process is complete, USCIS will randomly select H-1B petitions for processing (i.e., through a lottery) and selection notifications will be sent to account holders. As part of the new account system, on April 1, 2024, USCIS will begin accepting online filing for H-1B cap petitions and associated Requests for Premium Processing for petitioners whose registrations have been selected. Although electronic filing will be a new option for FY2025, petitioners will also have the option of filing a paper Form I-129 H-1B petition and any associated Form I-907 should they prefer.

To provide background and guidance on some common questions surrounding the H-1B cap, we have compiled a list of frequently asked questions.

1. WHAT IS THE H-1B?

The H-1B is a nonimmigrant visa for foreign nationals who will be employed temporarily in a “specialty occupation,” or as fashion models of distinguished merit and ability. A specialty occupation is defined as one that requires a bachelor’s degree in a specific field, or the equivalent experience, in order to perform the duties of the position offered. For example, architects, graphic designers, accountants, lawyers, engineers, and computer programmers are all specialty occupations and, therefore, likely to be eligible for H-1B visas. H-1B petitions are granted for up to three years at a time, for a maximum of six years. H-1B visa holders may also be sponsored for permanent residence which could allow for an extension of the H-1B petition past the six years.   

Under the current law, there is an annual limit of 65,000 new H-1B’s. This is referred to as the “H-1B Cap.” There are an additional 20,000 visas available for current or prospective employees who possess an advanced degree earned at a US accredited educational institution. This is referred to as the “Master’s Cap.” New H-1B’s become available on October 1, which is the first day of the government’s fiscal year. USCIS will only start accepting petitions for a new H-1B six months prior to the beginning of their new fiscal year (i.e., April 1). 

2. TO WHOM DOES THE CAP APPLY?

The cap applies only to those individuals who have never had an H-1B visa or who have been outside the US for more than a year after having held H-1B status in the US.

3. WHAT IS THE NEW “BENEFICIARY-CENTRIC” SYSTEM?

Under the new rule, individual foreign nationals will be limited to no more than a single entry in the lottery system, notwithstanding the number of registrations submitted on behalf of the individual since more than one US company may submit registrations for the same individual.

4. DO I NEED A PASSPORT OR TRAVEL DOCUMENT FOR REGISTRATION?

Because the new lottery system is “beneficiary-centric”, it is tied to the foreign national’s passport or travel document. To that end, each foreign national will be required to have a valid passport or travel document at the time of registration. It is prohibited by the final rule for H-1B registrants to use more than one passport or travel document to register.

5. WHAT IS THE NEW ORGANIZATIONAL ACCOUNTS PLATFORM?

Beginning February 28, 2024, US employers and their representatives will be able to set up new organizational accounts or update existing accounts in the USCIS online system platform. If you have previously established a legal representative or registrant account with USCIS for H-1B registrations, USCIS will automatically upgrade it to an organizational account. The new organizational accounts will allow multiple people within an organization or legal team to collaborate on the same H-1B registration, Form I-129, Petition for Nonimmigrant Worker, and associated Form I-907, Request for Premium Processing Service.

6. HOW DO I KNOW IF A BENEFICIARY IS SELECTED IN THE LOTTERY?

If an individual beneficiary is selected in the H-1B Lottery, all registrants that submitted a registration for that beneficiary will be notified via the organizational account. Each of the foreign nationals that are picked in the random lottery drawing will be eligible to file an H1B petition on behalf of the beneficiary during the filing period beginning April 1, 2024.

7. HOW CAN I FILE AN H-1B PETITION IF SELECTED?

If USCIS selects an H-1B registration within an employer’s organizational account, Forms I-129 and I-907 may be filed electronically online beginning April 1, 2024. Online filers will be able to access the forms through their online account. Traditional mail in applications will also be accepted and USCIS will be providing lockbox locations on its website for filing locations beginning April 1st. Currently, paper filings will not be able to be linked to organizational accounts.

8. WHEN CAN FOREIGN NATIONALS START WORKING IF SELECTED?

Historically, October 1st was the start date of H-1B petitions and foreign nationals could not commence work with the sponsor until October 1st. However, the newly published final rule to modernize the H-1B program allows a petitioner to request any start date of the fiscal year. Keep in mind though that the requested date may not exceed six months past the filing date of the petition.

9. CAP-GAP: WHAT IF THE F-1 OPT EXPIRES BETWEEN APRIL 1 AND BEFORE OCTOBER 1?

With respect to students on F-1 OPT, whose OPT expires after April 1 and before October 1, if the case is picked in the lottery after the registration period closes, as long as the H-1B petition is filed prior to the expiration of the OPT, the foreign national's work authorization will be automatically extended until October 1, by virtue of the H-1B filing. To ensure the foreign national does not fall out of status:

  • The foreign national must take the H-1B receipt notice to their school to receive a new I-20 indicating the extension of the OPT;

  • The foreign national MUST remain in the US between the expiration of the OPT and October 1 in order to have continued work authorization. If they travel internationally during this time, they will abandon the change-of-status and may not be able to return to the US until September 21, 2024, if the case is approved;

  • If the student’s OPT expires before the employer has the receipt for filing the case, they will have to stop working until a receipt notice for the H-1B arrives indicating that they were selected in the lottery and the case was filed. The student may only resume working once the receipt notice has been issued; and

  • If the H-1B is not approved by October 1, the foreign national will have to stop working if their OPT has expired.

10. WHAT ARE SITE VISITS?

USCIS will conduct random site visits on H-1B sponsors. Therefore, with respect to H-1B petitions, petitioners should:

  • Be vigilant with record keeping, public access files, etc.;

  • Make sure that all H-1B fees are paid by the sponsor without seeking reimbursement from the foreign national; and

  • Withdraw petitions for foreign nationals they no longer employ.

As further details regarding the FY25 H-1B Lottery are announced, we will continue to update this post accordingly. Good luck to all applicants! 

 

UPDATE March 22, 2024:  USCIS announced on March 21st that the initial registration period for FY 2025 will be extended through noon Eastern on March 25, 2024, instead of noon Eastern March 22, 2024, as originally reported. The service is granting the three-day extension due to a temporary system outage that was experienced by some registrants.

UPDATE March 11, 2024: Beginning on April 1, 2024, USCIS service centers will no longer accept paper-filed Form I-129 petitions requesting H-1B or H-1B1 (HSC) classification. Instead, starting on April 1, all H-1B petitions and associated Forms I-907 forms can be filed online or by mailing in applications to USCIS lockbox locations. Lockbox filing addresses will be provided in late March by USCIS via web alert and on USCIS’s Form I-129 Direct Filing Addresses page. The service will reject paper-filed H-1B or H-1B1 (HSC) petitions received at a USCIS service center on or after April 1, 2024, and stressed there will not be a grace period.

The service also noted that later this month, USCIS will launch online filing of Form I-129 and associated Form I-907 for non-cap H-1B petitions.