U.S. immigration law sets the annual number of new H-1B visas at 85,000; representing 65,000 for applicants with any qualifying education, and an additional 20,000 for holders of U.S. masters degrees or higher. This is referred to as the H-1B “cap.”** The demand for new H-1B visas far exceeds the supply.
To manage the misalignment between supply and demand, USCIS uses a lottery system. To participate in the lottery, an employer must submit a registration. The registrations must be submitted during a designated registration period. At the end of the registration period, USCIS conducts a randomized selection, or lottery. After the lottery is conducted, selected registrants are notified. Once the selected registrants are notified, employers have 90 days to file Petitions for H-1B with USCIS. Assuming that a selected registrant files a Petition and it is approved, the earliest effective date is October 1, 2023, the first day of the next fiscal year.
The lottery for fiscal 2024 has just been completed and USCIS has sent out notices of selection. Unless notified by USCIS that the registration has been selected, a registration has not been selected. At this time, USCIS is not sending out notices of non-selection. This is because of the possibility – remote as it may be – of a second round of selections in the coming months.
It is an understatement to say that the non-selection of an H-1B registration causes disappointment. In fact, the non-selection of an H-1B registration can have a serious negative impact on both the foreign worker and on his/her employer. The non-selection can disrupt a person’s personal and professional plans and most certainly hinders the growth of U.S. companies. In short, non-selection of an H-1B registration due to the severe underavailability of H-1B visa numbers is a serious problem for U.S. employers, their H-1B-eligible workers – and for U.S. economic interests.
The problem is attributable to inaction by Congress on immigration reform and the failure of elected officials to address the gross disconnect between the limited supply of visas for high-skilled workers and the needs of our economy. It is estimated that, during the registration period, there were more than 600,000 registrations. Some of these registrations were by different companies for the same person. A large proportion of these registrations were filed by consulting firms like Tata Consulting, Accenture, Infosys, HCL America and Cognizant, who file registrations by the thousands, without regard to the availability of assignments. In short, small to medium-sized employers are at a disadvantage in the H-1B numbers game.
For some H-1B-eligible workers, there’s always next year; persons in F-1 status who are eligible for 24-month STEM extensions of Optional Practical Training may have additional opportunities to get an H-1B visa in the future. For others, their choice will be re-enroll in an accredited academic institution, to pursue another degree, and to seek additional periods of OPT or CPT as a means of continuing on their career path. For other disappointed foreign workers, the unavailability of H-1B visa numbers may cause them to seek opportunity in their home country, or in a country which is more accessible to high-value, high-skilled workers. America’s loss will be Canada’s (or Australia’s, or the U.K.’s) gain.
The current system is broken. The current system does not serve U.S. interests. The current system does not help U.S. companies to compete in world markets. Yet, legislative solutions have not been forthcoming. It is VERY important that impacted companies and individuals reach out to their elected officials to explain why the unavailability of H-1B visas is harmful to U.S. economic interests. To find your Member of Congress, go to www.house.gov. To contact the office of your two U.S. Senators, go to www.senate.gov. Please do not wait; contact them by telephone, use their on-line portal and/or go to an in-person event to express dissatisfaction with the current state of affairs. Unless your voice is heard, change will not happen. Silence is surrender. . .
It remains possible that USCIS will use the regulatory process to try to address parts of the problem. However, much of the problem stems from the statute itself and the statute cannot be changed without legislative action in both houses of Congress. If you have questions about the H-1B cap, or about advocating for changes which will help U.S. employers and serve U.S. interests, please contact me. If you are an employer or potential H-1B candidate impacted by these circumstances and you wish to review options, please contact me.
**Note: not all H-1B’s are subject to the “cap”; for questions on exemptions from the “cap”, contact us.