Foreign workers in tech and other high-demand fields will have better chances of landing an H-1B specialty occupation visas this year thanks to an overhaul of the annual lottery process.
Starting Wednesday, employers can submit registrations for the visas for fiscal year 2025, the initial step before that randomized lottery determines who can move forward with visa petitions.
Unlike previous years, US Citizenship and Immigration Services will base lottery selections on individual workers, rather than the total number of submissions made on their behalf.
That change, which was overwhelmingly welcomed by employers, was adopted by the agency in new regulations aimed at cutting out fraud committed by companies submitting multiple registrations on behalf of individual workers that didn’t reflect legitimate job offers.
The new process also offers a measure of hope to foreign workers who have faced increasingly daunting odds of winning one of the coveted visa slots, capped at 85,000 per year.
“Employers are happy,” said Jill Bloom, a partner at Fragomen Del Rey Bernsen & Loewy LLP. “They’re glad that USCIS is taking action to fix a clear problem.”
While that lottery overhaul offers relief to employers looking to add foreign talent, they’re bracing for new visa fee hikes for the first time in nearly a decade as well as potential changes to eligibility criteria for H-1B visas later this year.
Level Playing Field
The H-1B program is the primary option for employers to hire foreign talent to fill workforce gaps in fields that require at least a bachelor’s degree.
The temporary visas have a duration of up to six years but can be extended indefinitely if workers have made sufficient progress in applying for an employer-sponsored green card.
Nearly three-quarters of H-1B workers come from India, and computer-related occupations account for more than two-thirds of approved petitions each year.
Recent lottery cycles, however, have made the program emblematic of the bottlenecks and diminishing opportunities in the employment-based immigration system. Employer submissions have grown exponentially over the past half decade since USCIS adopted an online registration system, surpassing more than 758,000 last year. Just over 200,000 visa petitions were submitted for fiscal 2020, the last cycle before the agency implemented an online registration system.
Meanwhile, the number of duplicate submissions filed on behalf of the same worker has made up a growing share of those registrations. More than half of eligible submissions for fiscal year 2024 were made on behalf of workers with multiple registrations.
That strategy significantly boosted the odds of selection for the companies looking to hire those workers. More than 68% of beneficiaries with three or more registrations on their behalf won the lottery for fiscal year 2023 visas, compared to just over a quarter of workers with one registration. Yet workers with a single registration make up the vast majority of submissions, according to data from USCIS.
The number of prospective H-1B workers with multiple registrations prompted USCIS to raise concerns that some companies were cheating the lottery system and to announce fraud investigations that could lead to the denial or revocation of some visas. While it’s legal for a single worker to have multiple employers submit registrations on their behalf, the agency believed some contracting firms were submitting numerous duplicate registrations that didn’t reflect actual open positions.
USCIS is continuing to make referrals to law enforcement for criminal prosecution based on fraud investigations from the past two H-1B filing seasons, an agency spokesman said on background. They noted that other measures in the lottery rule aim to address potential fraud, including one codifying the ability to deny or revoke H-1B petitions if the underlying petition was false or invalid.
“USCIS remains committed to deterring and preventing abuse of the registration process and ensuring only those who follow the law are eligible to file an H-1B cap petition,” the spokesman said.
The new lottery system could boost US-based career opportunities for foreign graduates of US colleges and universities who already are working for American employers under the Optional Practical Training program, said Xiao Wang, CEO of Boundless Immigration, which provides legal services to immigrants. The program allows such graduates to work in the US for a limited period of time while still on their student visas.
“These are students who graduate from US colleges and wish to stay here but aren’t able to because they don’t win the lottery,” he said. “They have to leave and upend their lives when they have a high-paying job already. It just seems like a really backward outcome.”
Competition for Workers
Under the new system an individual worker may still have several companies submit H-1B registrations on their behalf, said Shev Dalal-Dheini, director of government relations at the American Immigration Lawyers Association.
But because the lottery will be based on individual beneficiaries rather than employer registrations, selected workers will have the ability to weigh multiple, competing offers.
That’s a plus for H-1B workers—and potentially US workers as well—as companies will have to compete with each other by offering better compensation or working conditions, she said.
On the other hand, that potential competition also brings added uncertainty for the companies seeking the workers, Dalal-Dheini said.
“What will be most concerning to employers is knowing whether or not someone has multiple offers,” she said.
The stakes of entering the H-1B lottery will be even higher next year when registration fees go from the current $10 to $215 per registration as part of a larger update of USCIS visa fees.
Those costs may be daunting to some smaller employers, but others may still say “couple of hundred dollars really isn’t a huge bar of entry for us,” Fragomen’s Bloom said.
More Changes Coming
Other significant changes to the H-1B program that are still on the horizon this year could be just as impactful for employers.
Draft regulations released last year proposed closing “cap-gap” periods when a worker’s student visa status expires before the start date of their H-1B visa term.
The proposal also would redefine the criteria for what qualifies as a specialty occupation, prompting concerns about whether those standards reflect the fast-changing nature of jobs in industries like artificial intelligence.
“There’s definitely relief that employers don’t need to contend with changes to the actual H-1B eligibility requirements this year,” said Eileen Lohmann, a senior associate attorney at BAL. “It would have been very disruptive for that to be in place right before the cap season.”
Employers hope that this year’s lottery change will help restore some predictability to the visa selection process before the fee hikes and other regulatory changes take effect, Lohmann said. But the reality is that demand will still significantly exceed the supply of available H-1B visas unless Congress changes the law.
“Maybe not to the point of last year when we found out a lot of those registrations weren’t legitimate, but we don’t anticipate demand decreasing,” she said.
