this is another version Ask Sophie’s advice column to answer immigration-related questions about working at a tech company.
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With over 750,000 H-1B registrants this year, is it realistic for my early stage startup to consider hiring the candidates it is looking for?
— Skeptical Startups
I know, I know: numbers are intense.
I understand your skepticism because as employer demand for H-1B visas continues to rise, the chances of companies selecting H-1B visa candidates in the annual lottery process has been declining. Despite some well-publicized layoffs, many employers are continuing to hire, and the CHIPS Act of 2022 and the Infrastructure Investment and Jobs Act of 2021 are spurring more job creation.
In this year’s H-1B lottery, USCIS received a whopping 758,994 eligible registrations, and for the first time more than half (nearly 408,900) were H-1B candidates who had multiple employers enrolling them in the lottery. (How does the annual sweepstakes work? Check out my podcast to find out overview.)
This year, with no second draw, those are important questions to ask.
Nonetheless, I believe enrolling employees in the annual H-1B lottery is still worthwhile as part of a multi-pronged strategy to attract and retain U.S. international talent, as six years of dual-intent status can be very valuable to companies and team members who hold it.
This remains the case even as USCIS implements a proposal to increase the H-1B lottery registration fee to $215 from a recent $10. Despite the substantial increase, the extra $205 per registration probably won’t be a limiting factor for early-stage startups considering the process.
H-1B candidates’ chances of being selected in the lottery have declined dramatically, especially since USCIS implemented an online H-1B lottery registration system in 2020. Before 2020, companies that wanted to involve employees or potential employees in the H-1B lottery had to file a complete H-1B petition.
This time-consuming, costly and risky process often means that participating in the H-1B lottery is not practical for most startups. Additionally, companies must be prepared to pay the full application fee at the time of the draw, not knowing how many people will be selected and how many checks will be cashed. Registering candidates is now easy, and companies can decide for themselves whether to proceed with a full petition after they know whether someone has been selected.
Raising the annual cap of 85,000 H-1B visas (65,000 for undergraduate degrees and 20,000 for master’s and above) would require congressional approval, but is unlikely. However, USCIS could consider other administrative reforms, such as limiting each H-1B candidate to one H-1B lottery, regardless of whether that person has multiple job offers, to provide a more level playing field.
This year’s H-1B lottery
While it is not illegal to register H-1B candidates through the lottery and receive job offers from multiple companies, USCIS said it will closely scrutinize H-1B beneficiaries, companies and applications for potential abuse and fraud.
After this year’s draw USCIS says:
The high number of eligible registrations for beneficiaries with multiple eligible registrations – much more than in previous years – raises serious concerns that some may attempt to gain an unfair advantage by jointly filing multiple registrations on behalf of the same beneficiary. This may unfairly increase their chances of being selected.
If any of your early employees are receiving F-1 Optional Practical Training (OPT) or STEM OPT (a two-year extension for students graduating in STEM fields), make sure to include them in the H-1B lottery each March until they are selected before graduation, while maintaining OPT and STEM OPT status. You may also consider other visa alternatives.
Visas for citizens of certain countries
If your startup’s employees or potential employees are not selected in the H-1B lottery, you have other options. There are some work visas for individuals from certain countries. If any of your employees or potential employees are from Australia, Canada, Chile, Mexico or Singapore, these are good options to consider: