H-1B Cap: How Employers Can Optimize Chances

The H-1B visa is the primary route for highly skilled foreign nationals to work in the US. But it remains highly oversubscribed and the number of registrations is surging year on year. As well as becoming increasingly competitive, the H-1B process continues to be plagued by shortcomings and restrictions, to the frustration of both US employers and migrant employees alike.

There are also questions over how the current H-1B process aligns with President Biden’s recent Executive Order on the “Safe, Secure and Trustworthy Development and Use of Artificial Intelligence”; as the application rules currently stand, there are concerns that the H-1B is failing to facilitate the immigration of global tech talent, despite government ambitions to position the USA at the forefront of global AI.

While reforms of the H-1B process were proposed in October 2023, US employers in the meantime have to work within the existing parameters. To maximize prospects of success, this means early planning ahead of the H-1B season.

In this guide, we update on the current H-1B selection rules and challenges, and the steps employers can take to improve their organization’s applicants’ prospects of being selected.

 

H-1B lottery: record high registrations, record low chances of selection

In April 2023, USCIS reported a record number of H-1B registrations – 780,884 H-1B registrations were submitted for FY 2024, an increase of 61% on the 483,927 registrations for FY 2023.

USCIS operates a lottery when more H-1B registrations are received than the annual limit of 85,000 – which comprises 65,000 visas, plus 20,000 visas under the exemption for advanced degree holders from US universities.

After selection, employers must submit complete applications, and USCIS must then approve them for individuals to gain H-1B status for the coming fiscal year.

Through the lottery, USCIS selects more registrations than the annual cap to allow for applications that aren’t approved.

For FY 2024, 110,791 registrations were selected in a first round lottery to meet the H-1B quota of 85,000, equating to a 14.6 percent chance of selection – which is a record low.

USCIS then determined that additional registrations were required to reach the FY 2024 numerical allocations. A second FY 2024 H-1B cap registration lottery selection was held, with selections totaling 77,600.

The data clearly highlights to employers the increasingly competitive nature, and diminishing odds, of the H-1B selection process, and as such, emphasizes the importance of approaching the process fully prepared.

 

H-1B reforms to prevent registration fraud

According to USCIS, the record number of H-1B registrations for FY 2024 was due to multiple registrations being submitted for the same individuals.

It is unlawful for an employer to make multiple H-1B cap registrations in respect of the same individual and USCIS will reject any duplicate petitions by an employer filed for one person – even if the applications are from two different but affiliated companies.

However, where a qualified H-1B candidate has a genuine job offer from more than one employer, it is allowable for those different employers to submit H-1B registrations for that same individual. Therefore, in practical terms, it has become common for individuals to seek to obtain multiple job offers and H-1B registrations to increase their chances of selection.

USCIS issued a statement following the H-1B registration window in April 2023 about potential fraud being committed by some employers. The agency confirmed that it was conducting an investigation and referring employers or individuals who provided fraudulent attestations to law enforcement agencies for potential criminal prosecution.

The proposals to change the H-1B lottery rules published last month deal with this issue directly, whereby USCIS would be required to select registrations according to each recipient; regardless of how many employers register on an individual’s behalf, they will only be placed into the lottery once. The aim is to streamline the lottery process and enhance fairness and transparency.

 

How to maximize chances of H-1B selection

Under the current H-1B regime, there are certain steps that employers can take to optimize the prospects of selection for their applicants:

 

Start early

Planning in advance of the annual H-1B registration window opening – typically in March – affords the organization time to strategize and plan the approach to the H-1B process, both for current and future years.

We have extensive experience of advising employers on talent mobility options, and solutions to meet short and long term recruitment needs. As well as planning for the H-1B process, this also involves consideration of alternative immigration routes and solutions.

 

Check eligibility

Prior to H-1B registration, it is also recommended to be thorough in ensuring that the job itself is eligible for an H-1B visa and that the individual has the required degree or specialist experience to meet the requirements for the job. What counts as a specialty occupation is an evolving area, particularly within tech where new skills and technologies are emerging at pace and scale. We are experienced in advising employers on the eligibility of roles for the H-1B route, with specific guidance on evidential requirements to support your case.

 

Cap-exempt petitions

Explore whether you can avail of the US master’s degree or higher cap exemption, which allows for 20,000 visas, and better chances of success. This is because a cap-exempt job doesn’t depend on the lottery selection system and its time constraints, thereby improving the odds in your favour.

Also check if your organization automatically qualifies as a cap-exempt employer, which includes higher education institutions, non-profit organizations associated with higher education institutions and governmental research centers.

 

Consider early registrations

The H-1B minimum requirements are that the position requires, at a minimum, a bachelor’s degree (or higher) and that the candidate has such a degree. Master’s degree students may still be eligible for an H-1B cap filing based on already having a qualifying bachelor’s degree, even before the master’s degree is completed. Similarly, an H-1B cap application may be submitted based on an incomplete degree plus years of work experience.

 

Complete and comprehensive petition

If selected, ensure all the relevant parts of the petition are completed correctly and make sure all the information provided are accurate. Errors, omissions and typos can be grounds for a rejection. It is also helpful to start work on the petition documentation, such as the Labour Condition Application form ETA-9035 (LCA), to be as prepared as possible when the petition window opens.

 

Stay informed about H-1B reforms

H-1B visa requirements are subject to change and reforms of the route are expected to take effect in the near future. Ensure you are up to date with the latest requirements, since procedural, documentation and information errors can result in refused applications.

 

Need assistance?

NNU’s specialist US immigration attorneys work with US employers to provide advice and guidance on talent mobility to the USA, including how to optimize prospects of success in the H-1B lottery and consideration of alternative routes given the increasingly competitive nature of the H1B visa.

We provide expert assistance on the H-1B registration and petition process, advising on the documentation to compile, ensuring all petitions are completed correctly and that the application process is managed effectively.

If you have a question about the H1B visa, or any other US immigration-related matter, please contact us for advice.

 

H-1B chances of selection FAQs

What are the odds of getting H-1B approval?

H-1B lottery selection odds have been declining in recent years. Only 14.6% of eligible H-1B registrations for FY 2024 were selected, compared with 26.9% for FY 2023 and 43.8% for FY 2022 and 46.1% for FY 2021.

 

Is it very difficult to get H-1B visa?

The H-1B visa is highly oversubscribed and employers and workers are advised to consider alternative immigration options in the event an H-1B registration or application is not successful.

This article does not constitute direct legal advice and is for informational purposes only.