Ask Sophie™: What to do if selected/not selected in H-1B lottery?

Dear Sophie,

After three tries, I was finally selected this year in the H-1B lottery! What do we do next?

— Wondering Winner

Dear Sophie,

I’m on STEM OPT. My employer put me in this year’s H-1B lottery for the third time, but I wasn’t selected again! What do I do?

— Lottery Loser

Subscribe to Our Newsletter!

Thank you both for reaching out to me! Since your questions are on the minds of thousands of others who are in the same situation, I wanted to address them together. My colleague Nadia Zaidi and I offer some guidance on both of these questions in this podcast.

Yesterday, U.S. Citizenship and Immigration Services (USCIS) announced that it received enough electronic lottery registrations to reach the maximum total number of H-1Bs that can be allocated in the new fiscal year. All employers have been notified if their candidates were selected and the attorney and employer can download the PDF confirmation through the USCIS portal.

The selection notices started trickling in over the weekend, including on Saturday and Sunday, well before the end of the month. We don’t yet know how many H-1Bs were submitted in this year’s lottery, but based on the selection percentages, many experts are estimating that there could have even been more than last year’s record-breaking number of 483,927 for the 85,000 available spots, because selection rates for the master’s cap and regular cap both seem to have decreased for many colleagues in the field.

Let me dive into Wondering’s question first in a little more detail and provide some insight on what employers and beneficiaries need to do now for individuals who are selected. Keep in mind — this is only a stepping stone to having an H-1B, and getting selected means that you have the chance to apply, so you need to continue to pay careful attention to this process.

What do I do now that my H-1B registration was selected?

First of all, congratulations to you and your employer! This is a significant milestone for both of you. If you were an international student in the U.S., this amazing step might provide you with a little more ease, especially if you have gone through the lottery for multiple successive years.

You and your employer should familiarize yourself with the process and upcoming deadlines. Your employer will have at least 90 days, likely until June 30, 2023, to submit an H-1B application on your behalf to USCIS. This requires that you first get U.S. Department of Labor (DOL) approval of a Labor Condition Agreement (LCA) to include with the H-1B application. For the LCA, your employer agrees to pay you the prevailing wage based on your position and geographical location to ensure you are compensated fairly. Your employer also attests that hiring you will not have a negative impact on the wages and working conditions of American workers.

You’ll need to confirm key details, and I always recommend that all employers work with experienced immigration attorneys to file their H-1Bs — they are high-stakes and getting the details right matters. Some of the factors to pay attention to include where you are in the world and your international travel plans, how long you are maintaining status if you are in the U.S., whether you’re applying for a change of status or consular processing and if you plan to work from home or have multiple worksites.

The earliest you can begin working on an approved H-1B is Oct. 1, 2023, the beginning of the federal government’s fiscal year. If you are an F-1 student on Optional Practical Training (OPT) or STEM OPT, which is the two-year OPT extension for STEM graduates, and your final year of eligible work authorization is scheduled to end before Oct. 1, you’ll be ok!

You are eligible for something called Cap Gap, an extension that bridges the period between the end of your F-1 OPT or STEM OPT and Oct. 1. The “cap” refers to the limit on the number of H-1B visas that are issued each fiscal year, which is capped at 85,000. The “gap” refers to the period between the end of your F-1 status and the beginning of your H-1B status. If you are in this situation, pay close attention to the expiration of your EAD card, as USCIS must receive your H-1B petition prior to the expiration of your work authorization to qualify, and this date could potentially land before June 30th.

If you are in the U.S. on another type of visa, your employer must extend your visa if it is set to expire before your H-1B start date.

If you still have several months left on your F-1 OPT, STEM OPT or current work visa, you can maximize your time in the U.S. by asking your employer to make your H-1B start date when your current visa is set to expire.
For the H-1B petition that your employer files on your behalf, you will need to gather supporting personal documents, which can potentially include:

• Your transcripts, bachelor’s or higher diploma, or proof of work experience or specialized training. Three years of work experience and/or specialized training is equivalent to one year of college study. If your documents are not in English, you will need to get a certified translation.
• Your current resume.
• All of your U.S. immigration forms that demonstrate you have maintained legal status while in the United States including all Form I-20s (certificates of eligibility for student status) issued to date if you have a U.S. degree, any employment authorization document (EAD) cards issued for OPT or STEM OPT, and Form I-94 (Arrival/Departure Record).

I provide more specifics on what makes for a strong H-1B petition in this podcast.

If you are approved for an H-1B and are already in the U.S., you can change your status to the H-1B without leaving the U.S. The U.S. Department of State is planning to launch a pilot program later this year to test doing visa stamping or H and L visas within the U.S. rather than requiring individuals to leave the U.S. and make an appointment at a U.S. embassy or consulate in their home country for visa stamping.

If you are approved for an H-1B and are outside of the U.S., you will need to make an appointment at a U.S. embassy or consulate in your home country for visa stamping. If you’ve received a U.S. work visa before, consular officials can decide to waive your visa interview. For H-1B stamping at a consular interview, you will typically need to bring the following:

• Your appointment schedule letter.
• The online Form DS-160 confirmation.
• The Form I-797 H-1B approval notice.
• Your employer’s letter for the H-1B application and employment verification letter.
• The Form I-129 H-1B application that your employer submitted.
• Monthly bank statements and recent payroll stubs for the last three months.

Consular officials may require you to bring additional documents, such as your resume, transcripts and diplomas from any universities or colleges you attended. Your employer’s corporate attorney should be able to provide guidance on navigating this process.

You’ve got this! Now, on to Lottery’s question.

Subscribe to Our Newsletter!

What do I if I didn’t get selected in the H-1B lottery?

Take a deep breath — and don’t worry! I’ve got options for you.

The first option is the O-1A extraordinary ability visa. You must meet at least three of the following eight criteria to qualify for an O-1A:

1. National or international prizes or awards for excellence in your field, such as receiving a Ph.D. scholarship or dissertation award, winning a hackathon or being awarded a patent.
2. Invitation to join a group or association that demands outstanding achievements, which are evaluated by experts in your field, such as fellow-level membership in IEEE or acceptance into an accelerator or incubator. Aim for at least two of these selective memberships.
3. Articles about you or your work have been published in professional or trade publications or high-profile media. Six or more articles is generally good.
4. Judging the work of others in your field or a related field either on a panel, such as a hackathon or startup pitch competition, or on your own, such as hiring decisions.
5. Significant contributions to your field. This criterion may overlap with other criteria, such as whether your work has been used by others through licensing, patents or contracts, or has received widespread media attention.
6. Articles that you’ve written that have been published in scholarly, professional or trade publications, major media or textbook chapters you’ve written.
7. Employment in a critical or essential capacity for organizations with a distinguished reputation. Evidence for this criterion can include recommendation letters, media coverage or your impact on your company’s key performance indicators.
8. Have a high salary or other compensation above the industry average for your geographical location.

I describe in detail what it takes to meet each of the O-1A criteria in this previous Ask Sophie™ column. Also, if you don’t meet at least three of these criteria, talk to your employer about supporting you as you build up your qualifications.

Another option is the cap-exempt H-1B. Some employers, including higher education institutions, nonprofits tied to these institutions, and nonprofit and government research organizations, do not have to subject their H-1B candidates to the annual H-1B lottery. They are called cap-exempt employers, and they are exempt from the annual cap of 85,000 H-1B visas. That means they can apply for H-1B visas at any time of the year.

If you can get a part-time H-1B visa through a cap-exempt employer, your for-profit employer can concurrently sponsor you for an H-1B without a lottery win. We’ve had great success working with Open Avenues Foundation, which has a program that offers a cap-exempt H-1B to individuals in a STEM field to lead university students for about five hours a week in real-world, project-based work for your employer. With a cap-exempt H-1B, your employer can concurrently sponsor you for an H-1B without the lottery. This is a heavier financial investment for your employer, but this can be an amazing tool to keep you in the U.S. if it’s your only option.

There are some work visas that are for individuals who are citizens of specific countries:

• The H-1B1 specialty occupation visa is an H-1B earmarked for citizens of Chile and Singapore.
• The E-3 visa allows Australians to live and work temporarily in the U.S. if they have a “specialty occupation” that requires specialized theoretical or practical knowledge like the H-1B.
• The TN (Treaty National) visa enables individuals in qualified professions from Canada and Mexico to come to the U.S. to live and work temporarily.

Consult with your employer and your employer’s immigration counsel about these and other alternatives that may be available to you.

You’ve got this!

All my best to you both!

— Sophie

Have a question for Sophie? Ask it here. We reserve the right to edit your submission for clarity and/or space.

The information provided in “Ask Sophie™” is general information and not legal advice. For more information on the limitations of “Ask Sophie™,” please view our full disclaimer. You can contact Sophie directly at Alcorn Immigration Law.

Sophie’s podcast, Immigration Law for Tech Startups, is available on all major platforms. If you’d like to be a guest, she’s accepting applications!