Navigating the New H-1B Lottery: Key Changes and Timelines for 2024 (FY2025)

The H-1B lottery season is upon us. Here's all you want to know about the lottery process and beyond. We also talk about some things that you may have heard through online grapevines.

What's changing this year (2024 | FY2025)?

1: Everyone gets a fair shot

The new law (announced Jan 30, 2024) will give all registrants a fair shot at the lottery.

Now, even if someone is registered into the lottery 5 times by 5 different employers, they will only be put into the lottery once. Yes! You read that correctly. Just once.

So, no more gaming the system. USCIS is calling it a "beneficiary centric" system and rightly so.

What happens if 5 employers register for me and I get picked?

If you do get picked in the lottery, then all the employers will receive the selection notice and you can work with one of them to file your petition.

2: You need a valid passport to register for the lottery

Starting this year, you need a valid (unexpired) passport to register for the H-1B lottery. The passport number will act as a unique identifier in the lottery process i.e. USCIS will use the passport number to ensure that no one gets more than once chance at the lottery.

3: You can request your H-1B to start at a later date

USCIS has provision where it may allow your employer to request a later start date on your H-1B. This is only applicable if you meet certain criteria. We suggest talking to you immigration counsel about this.

4. USCIS can now decline or revoke your H-1B petition

The Department of Homeland security has allowed the USCIS to deny an H-1B petition or even revoke an approved H-1B petition if they find that the underlying registration had false attestation, invalid registration or fee.

What's not changing this year?

The government registration fee is still staying at $10.

H-1B LOTTERY PROCESS 2024 | FY2025

Expand each step to learn more

STEP 1: Register for H-1B Lottery

Lottery Registration Opens: March 06

Lottery Registration Ends: March 22

USCIS opens the registration process in March. At this time, the attorney representing the employer (and not the employee) will work with the company's point of contact (HR manager or Hiring Manager) to register the employee/s for the H-1B lottery.

Note - if the company has never been registered for the lottery before, then the attorney needs to first register the company with the Department of Labor (DOL) and register it for the lottery after registration confirmation from the DOL. The DOL's registration confirmation takes a few days.

Here are USCIS' step-by-step instructions to register employees for lottery

STEP 2: Lottery selection announcement

USCIS announces selection: March 23 - March 31

If USCIS receives more than 85,000 registrations, the agency will run the lottery and will inform the employers about selected employees by March 31.

If, however, USCIS receives 85,000 or fewer registrations then everyone who registered for the lottery will be selected.

Will I get an email from USCIS if I am selected or not selected?

No. Only the company point of contact and the attorney get confirmations and only for the employees that have been selected. If no employee is selected in the lottery, no communication is sent out.

We have seen confirmation emails come through on April 01 through April 05, so if you don't hear by the end of day April 01, wait for a few days or ask your company's point of contact to check their USCIS account that was used to register you for the lottery. So, the company's POC should check the portal to make sure that the employee status hasn't changed from "Submitted" to "Selected".

IF SELECTED IN THE LOTTERY

FILE H-1B PETITION BY: June 30

For the employees that are selected, USCIS sends out instructions to download the I-797 (Approval Notice) with the lottery result and outlining the next steps.

NOTE: filing early does nothing to increase your chances of approval.

IF NOT SELECTED IN THE LOTTERY

Status stays as "submitted" until: Sep 30

STEP 3: File Labor Condition Application (LCA)

What is the LCA?

The Labor Condition Application or the LCA is required to prove to the U.S. government that the foreign national employee will be paid a wage that is above the Prevailing Wage (PW) published for the position. The prevailing wage is decided by the Department of Labor (DOL) and published for specific job categories. The prevailing wage depends on -

• the location of work for the employee (state, county and metropolitan statistical area)

• and the level of experience required to do the job

The prevailing wage recommendation is made by the attorney for a job category that he/she thinks best suits the employee's job description and role. The employer acknowledges to pay above the prevailing wage during the labor certification process.

Note - the proposed wage for H-1B that meets the criteria of prevailing wage does not have to be paid to the employee until October 01 or from the date of the start of their H-1B status.

How long does the LCA approval take?

1 week

Once the LCA has been prepared and uploaded to DOL's website, the employer needs to post the LCA within 24 hours, based on DOL's regulations, for 10 consecutive days. In the meantime, the DOL should approve the LCA. It is only after 10 days of the LCA being posted and removed, can the H-1B petition be filed with USCIS.

STEP 4: Submit H-1B Petition

Once the DOL approves the job category and offered wage, the attorney should be able to file the H-1B petition which needs to be accompanied by the approved LCA.

Timeline - the timeline to file the H-1B petition depends on the attorney that's representing the employer. The only critical date to keep in mind is that the petition is submitted with USCIS by June 30 (90 days from the date of decision - March 31).

Note - it's a good idea to track the following -

• The petition packet has reached USCIS

• The check for filing fee have been cashed out by USCIS

STEP 5: Track H-1B progress

Once the petition makes it to USCIS, the agency issues a notice stating the case number that can be used to track the status of the case. The notice is sent to the attorney and the employer.

Tracking the case: You should be able to track the status of the use through USCIS' website. As the beneficiary/employee you can create an account with USCIS to receive email alerts on the case.

STEP 6: Decision

Decision can take: 3-6 months

What if I want to file with Premium Processing? 

The petition can be filed with a premium processing request. The fee for requesting premium processing has increased to $2805. With premium processing, USCIS has to decide on the petition within 15 business days (used to be 15 calendar days).

What are the possible outcomes?

The time USCIS takes to make a decision on the case varies on the amount of caseloads that the agency is dealing with at the service center assigned to the case. Everyone desires for an approval on the case but a case could receive a Request for Further Evidence (RFE) or in extreme cases a Notice of Intent to Deny (NOID).

RFE: A request for evidence can be received if the USCIS adjudicator feels that the case for a specialized occupation hasn't been made by the employer. The RFE is issued for a number of reasons including failing to provide evidence that the job is a speciality occupation, not paying the correct government fee etc.

NOID: The NOID is used for situations where the adjudicator (the person evaluating the petition) believes that the petition should be denied, but that the petitioner may have additional evidence that might lead the petition to be approved.

APPROVAL: If the case is approved, USCIS sends out a Notice of Approval (I-797) to the employer's point of contact and the attorney.

Note to employee: You should get the original approval notice from the attorney or from your employer. Keep this safe for your records.

STEP 7: Starting on H-1B

H-1B Start Date: Oct 01, 2024

Change of Status - The employee's status will automatically change to H-1B if they are in the U.S. on the date mentioned on the I-797.

Consular Processing Request - If consular processing was requested then the employee will have to go to the U.S. embassy to get the visa stamped on their passport.

Note to HR manager: At the start date of the employee's H-1B (mentioned in the I-797), you are required to do another I-9 check.

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IN CASE YOU WONDERED.......

Why does H-1B selection happen through lottery?

The short answer is because there are more people applying for the H-1B visa than there are visas available. The U.S. government opens 85,000 new H-1B visas every year and there are nearly four times visa applications that are received. So, because of the lack of a better way to pick applicants, USCIS resorts to running a random selection process. To learn more, you can read our article about the process and an employee's odds of getting picked.

Myth 1: The H-1B Lottery is not random

Untrue. The H-1B lottery is totally random. As the process stands now, USCIS does not cherry pick applications based on any criteria.

Myth 2: The H-1B Lottery selection depends on an employee's salary

Untrue. An employee's salary does not have any factor what-so-ever in determination of the H-1B lottery selection. The salary data is not even asked when the company and its employees are registered for the lottery. The proposal to make salary a criteria for selection, that the Trump administration was pushing, was rejected by the U.S. court and rescinded by USCIS.

Myth 3: The H-1B Lottery selection depends on the employee's location

Untrue. Like the salary, your location has no bearing on the lottery selection. Your employer can put you through the H-1B lottery whether you are in the U.S. or anywhere else in the world.

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Content in this publication is not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult a WayLit-affiliated attorney or another qualified professional.