New Preregistration for H-1B Cap Cases Subject to the Lottery

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By Helen L. Konrad, McCandlish Holton

Many professional staffing firms rely on the talent of international students graduating in information technology; data analytics; engineering; and other science, technology, engineering, and mathematics (STEM) fields. These students have work authorization through their programs that must be eventually transferred to a longer-term work visa called the H-1B visa.

Each year, there is a quota on the number of new H-1B petitions that U.S. Citizenship and Immigration Services will process. The quota is 85,000. For international graduates of U.S. universities, this is an important issue—the H-1B visa is the only realistic option for many international graduates to stay and work in the U.S. on a long-term basis after student work authorization expires.

The H-1B quota years runs from Oct. 1 to Sept. 30 each year. In years past, USCIS began accepting H-1B petitions for the H-1B quota (the H-1B “cap”) on April 1. Since USCIS would receive many more than 85,000 petitions, the agency would hold a random drawing to select 85,000 cases to process. This is known as the H-1B “lottery.”

This year, USCIS is implementing a new “preregistration” process, beginning March 1. Under this new process, employers wishing to file an H-1B petition must first pay a $10 fee and “preregister” by filing an electronic application and providing certain information about each sponsored employee. Preregistration applications can be submitted from March 1 to March 20.

As in years past, USCIS will likely receive many more applications than there are quota slots available during this preregistration period. Assuming that is the case, USCIS will perform a random lottery and will select 85,000 cases to process. Sponsors of cases selected for processing will be notified, and the employer will have 90 days to submit a full H-1B petition to prove that the candidate qualifies for H-1B. This new process will save staffing firms thousands of dollars because they will only pay legal fees to prepare petitions for cases selected for the lottery.

Here are some tips for participating in the H-1B preregistration and lottery process:

  • Of the 85,000 quota, there is a total of 20,000 set aside for advanced degree graduates of U.S. universities. The 20,000 “advanced degree” quota is only available for individuals who possess an advanced degree from a U.S. university at the time of filing. If a candidate is in an advanced degree program, but has not yet completed the program at the time of filing, the candidate does not qualify for the 20,000 advanced degree quota. However, the candidate may still qualify to file within the 65,000 quota if the undergraduate degree is related to the H-1B job.
  • An employer can file an H-1B petition even if a diploma has not yet been issued for a student’s current degree program, but only if the student has confirmation from the university official who is responsible for conferring degrees that the student has completed all requirements for the degree. It is not sufficient to get a letter that the student will complete the degree after the H-1B petition is filed. The official who confers degrees is typically the provost or similar official-not a department chair.

    NOTE: USCIS has not issued guidance regarding whether the student must have completed the advanced degree program at the time of filing the preregistration in order to qualify for the advanced degree quota. It is unclear whether, if a student has not completed the advanced degree program at the time of the preregistration filing but will complete it by the time the H-1B petition is filed, this is sufficient to qualify the student for the advanced degree quota. McCandlish Holton believes that students must have completed their advanced degree program at the time of filing the preregistration in order to be eligible for the advanced degree quota. Anyone filing a preregistration for the advanced degree quota before completing the advanced degree program runs the risk of having the H-1B petition rejected once it is filed.

  • Candidates can file H-1B petitions through multiple employers, but cannot file multiple H-1B petitions with the same employer.
  • Students with F-1 status who have been working under the Optional Practical Training program have, in the past, been able to extend OPT upon filing an H-1B petition under a process called “cap gap extension” of OPT. This process is still in place. To qualify for cap gap extension of OPT, the H-1B petition must be filed before the OPT expires. Students should alert their immigration adviser of the expiration of their OPT to ensure that the H-1B petition is prioritized and filed before the OPT expires.
  • Employers should contact an immigration attorney in January to start the process. McCandlish Holton processes H-1B petitions for employers all over the country and is happy to assist with this process.