Frank A. Novak

Frank A. Novak

  585.231.1406

  fnovak@hselaw.com

Prior to March 1, 2022, U.S. employers should urgently assess whether any current or prospective foreign national employees may require H-1B sponsorship. The annual H-1B lottery process is fast approaching and represents a key immigration planning issue for employers.

U.S. Citizenship and Immigration Services (USCIS) will continue to use the electronic registration process, first introduced in 2020, for the 2022 H-1B lottery. Under this process, employers must submit an electronic registration ‘ticket’ for each sponsored employee during a designated registration period in March. In 2021, the registration period ran from March 9 until March 25 (USCIS hasn’t released the official 2022 H-1B lottery dates yet, but we suspect that the timeline will be similar to last year). If USCIS selects a sponsored employee’s ‘ticket’ in the lottery, the employer will have 90 days to submit a full petition demonstrating eligibility for H-1B status.

In order to file an electronic registration ‘ticket’, an employer must provide the following information: Employer name, federal employer identification number (FEIN), headquarters address, contact information for an authorized signatory, employee name, date of birth, country of birth/citizenship, passport number, and whether the employee obtained a master’s degree or higher in the U.S. Each registration requires a $10 fee.

USCIS will not consider an employee’s offered salary in the 2022 H-1B lottery process. While USCIS sought previously to replace its randomized lottery with a system prioritizing the highest paid H-1B workers, USCIS withdrew this rule and will continue with its existing randomized lottery process.

U.S. employers should immediately assess whether any current or prospective foreign national employees may require H-1B visa sponsorship to secure ongoing work authorization and work with counsel to prepare an electronic registration. H-1B visas generally cover bachelor’s level professional positions. Many U.S. employers hire foreign nationals to work in the U.S. under H-1B visa status, especially recent college graduates or others coming from abroad to work in the U.S. 

Approximately 65,000 new H-1B visas become available each federal fiscal year (beginning October 1), with an additional 20,000 available for those who obtained a U.S. master’s degree. In recent years, the annual demand for H-1B visas has significantly outpaced their availability. Accordingly, USCIS conducts a lottery around the end of March for the upcoming fiscal year’s H-1B quota.

Not all individuals are subject to the H-1B quota. For example, many H-1B employees currently employed by U.S. companies may have already been counted against the quota and will not need to be counted again.

Prospective or current employees subject to the H-1B quota may include:

  • Current foreign students or recent graduates working under authorized F-1 Optional Practical Training (OPT).
  • Foreign nationals in or outside the U.S. who are not already employed in H-1B status by a for-profit employer.
  • Current H-1B employees at universities who seek new employment by for-profit companies. 

If you have any questions regarding this LEGALcurrents and/or the lottery process, please do not hesitate to contact any member of the firm’s Immigration practice group at 585.232.6500.

click here to view Annual H-1B Lottery Process - Employers with Foreign National Employees Should Begin Planning Now as a PDF


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