On March 27, 2023, USCIS announced that it had received enough electronic registrations to reach the H-1B annual cap FY2024, including the advanced degree exemption (Master’s cap). While official statistics regarding the number of registrations submitted vs. that selected have yet to be released, reports across the board indicate a much lower selection rate than in previous years. For those not selected in the H-1B lottery, it is important to assess other nonimmigrant visa and work authorization options.
The H-1B nonimmigrant category allows US employers to hire foreign workers temporarily to fill a specialty occupation role in the US for a specific period, which can be full-time or part-time. The government designates a cap on the number of H-1B visas it issues in each fiscal year. Congress has set the cap at 65,000 visas, with an additional 20,000 available to those who have obtained an advanced degree. The advanced degree exemption is an exemption from the H-1B cap for those who have earned a U.S. Master’s degree or higher and is available until the number of exempt beneficiaries exceeds 20,000. Up to 6,800 visas are set aside from the 65,000 each fiscal year for the H-1B1 program pursuant to the legislation implementing the U.S.-Chile and U.S.-Singapore free trade agreements. Unused visas for this group become available for H-1B allocation in the next fiscal year’s regular H-1B cap.
Employers seeking to file H-1B cap-subject petitions must first electronically register their company and complete the H-1B registration process online. Only registrations randomly selected by USCIS may file an H-1B cap petition.
When USCIS completes its initial H-1B selection process, employers can check the status of their H-1B registrations online using their MyUSCIS account. If selected, employers were allowed to begin filing their H-1B cap subject petitions on April 1, 2023. Note, if the H-1B registration status reflected online remains as “submitted,” the registration remains eligible for selection in subsequent fiscal year selections. Last fiscal year, only one selection was conducted in contrast with previous years.
Below is a summary of the H-1B Registrations and Selection rates for FY2020 to FY2023. Note that the number of registrations received and selected for FY2024 have yet to be released. Based on the record number of registrations received FY2023, coupled with other factors, including the decrease in H4 EAD processing times, H-1B registrations are predicted to exceed 500,000. Selection rates reported on various listservs have indicated selection rates ranging from 12% to 17%.
|Fiscal Year||H-1B Registrations Received||H-1B Registrations Selected|
|FY2024||~500 to 600,000||~12 to 17??%|
While total registrations have increased in the last few years, the selection rate FY 2024 seems to have significantly dropped, with some reporting zero registration selections to date. For the next fiscal year (2025), USCIS has proposed an increase in the registration fee from the current $10 to $215. Based on the increasing demand for H-1B professionals, we must see if the 2050% stems the tide.
- TN NAFTA Professional: The United States-Mexico-Canada Agreement (USMCA), permits qualified Mexican and Canadian citizens to seek temporary employment in the US to engage in business activities at a professional level under the TN nonimmigrant classification. The occupation must be in Appendix 2 of the USMCA’s list of professions, which includes disciplines such as accountants, engineers, lawyers, pharmacists, and scientists). Canadian citizens can apply for TN admission directly at a port of entry (POE) on the northern or southern borders of the US at the time of admission for an initial period of stay of up to 3 years, while Mexican citizens should apply for a TN visa directly at a US embassy or consulate. While the TN visa does not provide the benefit of dual intent as applied to H-1B professionals, the TN visa serves as an essential visa solution for many Canadian and Mexican citizens not selected in the H-1B lottery. TN status may serve as a bridge until the next H-1B lottery season.
- L-1 Intracompany Transfers: The L-1 intracompany transfer visa permits foreign workers who have worked for a foreign branch, affiliate, or subsidiary of a US company to transfer to the US to work in an executive, managerial, or specialized knowledge capacity. This classification also enables a foreign company that does not yet have an affiliated US office to send an executive or manager to the United States with the purpose of establishing one. The foreign national must have been working for the qualifying foreign entity for one continuous year within the three years immediately preceding the petitioner’s filing of the initial L-1 petition or other employment-based nonimmigrant petition sponsoring the foreign national’s services to work for the qualifying organization in the US Qualified employees entering the US to establish a new office are allowed a maximum initial stay of one year. All other qualified employees are allowed a maximum initial stay of three years. Managers and executives are limited to a seven-year period of stay in the US in L-1 status, while those admitted to serve in a specialized knowledge capacity are limited to a total of five years.
- O-1 Individuals with Extraordinary Ability or Achievement: The O-1 visa is reserved for foreign nationals of “extraordinary ability” in the sciences, arts, education, business, or athletics, or extraordinary achievement in motion picture and television production, and their essential support personnel. To qualify for an O-1, applicants must prove that the foreign national is at the top of their professional field. Such evidence can include scholarly publications, receipt of nationally or internationally recognized awards, proof of high salary, etc. An O-1 applicant is allowed a maximum initial stay of up to 3 years. It is important to consider the updated guidance published by USCIS to support O-1A petitions for those in STEM fields. USCIS has recognized that being named on a competitive government grant for STEM research can be a positive factor toward demonstrating that a beneficiary is at the top of their field and providing a list of additional examples of qualifying evidence of extraordinary ability.
- E-1 Treaty Trader/E-2 Treaty Investor: The E nonimmigrant visa categories include treaty traders and investors. The employer must share the same qualifying nationality as the foreign national employee. That foreign national must be a citizen of a country with a qualifying treaty with the US.  In order to qualify, the US employer must establish a substantial investment (E-2) in the US or substantial trade between the US and country of nationality (E-1). The position offered must be of a “managerial or supervisory” nature or one that requires “essential skills.” The initial period of stay allowed for E-1 and E-2 applicants is two years and the maximum visa validity is up to five years. There is no requirement for prior qualifying employment with an affiliated entity abroad.
- J-1 Exchange Visitors: The J-1 nonimmigrant category is for individuals approved to participate in exchange visitor programs in the US, which can range from students to research scholars to camp counselors to physicians. J-1 programs include opportunities for professors, researchers, short-term scholars, students, teachers, etc. To qualify, the J-1 applicant must be sponsored by an exchange program designated by the US Department of State. The J-1 period of stay will depend on the specific program. Note, some J-1 exchange visitors are subject to a two-year home-county physical presence requirement, which would require them to return home for at least two years once the J-1 stay has been completed unless granted a waiver of the requirement.
- If the foreign national’s highest level of education is a Bachelor’s degree, consider having them extend their US education to obtain an advanced degree. This extension will allow them to remain in the US to apply for another round in the H-1B lottery. In addition, it increases their chances of being selected in any subsequent lottery using the master’s cap.
- Foreign nationals still enrolled in school may qualify for employment through Curricular Practical Training (CPT).
- International students who graduate from a US post-secondary institution may be eligible for 12 months of Optional Practical Training (OPT) and employment in a field related to their degree. Those who have graduated with a degree in a STEM field may extend the initial period of OPT for an additional 24 months when working for an E-Verify enrolled employer.
- B-1 in lieu of H-1B: If the foreign national is coming to the US to work in an H-1B eligible position, but will remain employed and paid by a foreign company, they may be suitable for a B-1 in lieu of H-1B visa. To qualify for a B-1 visa, note that a foreign firm must customarily employ the employee. A subset of the B-1 visa, the B-1 instead of the H-1B visa allows a foreign national to engage in short-term employment or training in the US so long as they engage in work qualifying as a specialty occupation. This alternative must be carefully reviewed to determine eligibility and the policy of consular posts.
About the Author:
Najah S. Allaham is an associate with Dickinson Wright’s Immigration Practice Group. Najah has years of experience assisting employers obtain employment based immigrant visas, including PERM labor certifications, EB1, EB2, and EB3 immigrant visas as well as various nonimmigrant employment based visas including E-2, L-1,H-1B, H-2B, TN visas. She can be reached at 248-433-7579 or email@example.com and her bio can be accessed here.
 See 9 FAM 402.12-4.