H-1B Lottery Insights Part 1: From Basics to Registration

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Meagan Dziura: Welcome to another immigration episode of the Ogletree Deakins podcast. I’m Meagan Dziura. I’m a senior attorney in Ogletree’s, Raleigh, North Carolina office. My guest today is shareholder, Kara Lancaster. Kara is also in the Raleigh office that we work with different clients in mostly different industries, which is why I wanted her perspective on our topic today. Thank you so much for joining me, Kara.

Kara Lancaster: Yeah, hi. Thanks for having me.

Meagan Dziura: So, some of you may have seen the title of this episode and clicked on it and have been like, we’re still reeling from an election that may have huge impacts on immigration. So, can we get a breather? Why are we already talking about CAP? It doesn’t start until next year, and the answer is no because we have to prep for the CAP already, and clients are already contacting us to prep for the H-1B lottery, and that’s why we wanted to talk about it today. During this episode, we’ll be talking about how you can best prepare your company for the fiscal year 2026 H-1B lottery and updates made by USCIS from last year. Before we get into that, we did have a big news update from USCIS from December. So, USCIS announced on December 2nd that the fiscal year 2025 selections were officially finished, which it’s shocking that it took this long because the selections were initially announced in April.

So, USCIS has confirmed they’ve filled all of their H-1B slots, meaning there will not be a third round of selections for fiscal year 2025, meaning that if you have employees that were not selected in the 2025 lottery, you should definitely consider putting them in for this next lottery starting in March 2025. So, before we get into the timing of the lottery, why companies should consider the lottery, and which employees they should consider putting in the H-1B lottery. Let’s just quickly run over the basics of the H-1B. So, what is the H-1B, and Kara, why is it such a popular visa for employers?

Kara Lancaster: Yeah, so to start really basic, the H-1B visa is known as the specialty occupation visa. So, what that means is that it’s a position that requires at least a bachelor’s degree in a specific specialty. When we talk about the lottery, we’re talking about brand new H-1Bs, so not individuals who already have had an H-1B in the past. This is somebody that’s going into the lottery for the first time to get their first H-1B, and, essentially, this is a visa that’s really beneficial for a couple of reasons. One reason is that it provides for immigrant intent. So that means the ability to have an intention to stay in the United States permanently. And sometimes you’ll hear that referred to as dual intent. So, you could plan on using the H-1B temporarily, or you could plan on using the H-1B to ultimately pursue a green card. And so, there are some visas including F-I students, and some other work visas that do not allow that intent to remain permanently.

And so, switching over to the H-1B is a good step towards reaching permanent residency if that’s the end goal. The other reason the H-1B is really beneficial is because although it has sort of a baseline six-year limit, it’s the only visa that can be extended beyond its sort of quote-unquote “limit” if an individual has reached certain milestones in the green card process. And so, unlike the L-1 visa that has a very hard five- and seven-year limit, and unlike some of the work authorization options for students that also have very hard limits, the H-1B can be something that is extremely flexible from a long-term planning perspective if you are lucky enough to be selected in the lottery. And so, it’s something that we’re seeing has become more and more important in light of a lot of the backlogs for green cards that we are seeing where some of these other visa types are just not providing enough time. They’re not providing enough time for somebody to stay in the U.S. and get their green card. And so, the H-1B visa really provides that flexibility and the ability to continue to extend your stay in the U.S. while pursuing that permanent residence.

Meagan Dziura: So, why do we even have this annual lottery? So, to back up several years, Congress allocated only a specific number of H-1B visas, and that number has not gone up despite more and more foreign nationals wanting to come to the U.S. and also companies needing foreign nationals skilled workers, skilled professional workers, to come to the U.S., Congress has not increased the number of H-1B visas that can be used each year. New visas, as Kara said. So, there are only 65,000 visas allocated to people who have a bachelor’s degree and who are applying for the H-1B visa. Then, there are 20,000 additional H-1Bs that are allocated for people who got a U.S. master’s degree, so not the equivalent of a U.S. master’s degree, but went to a U.S. institution to get a master’s degree. We call that the master’s cap.

So, in total, there are only 85,000 H-1Bs each year, and we’ll kind of go over the numbers later, but in the hundreds of thousands are how many people register for the H-1B each year. So, they’re just frankly not enough, which is why they started the H-1B lottery.

So, when does the H-1B lottery start? The registration period dates, they’re not announced yet, but last year, registration was March 6, 2024 until March 22, 2024. And there’s no difference if you register on that first date they announce it or the last date. USCIS does not start their selections until the lottery registration actually closes. So, companies have about a two-week period to register all of their CAP candidates. Then, usually, USCIS will announce that they’ve finished their automated computerized lottery selection. Typically, it’s done before April 1^st, and then the filing period will open. And that’s also usually between April and the end of June. So, next year, it’ll be June 2025. Again, they haven’t announced these dates yet. Typically, they’re announced in the beginning of the CAP year. So, in the beginning of 2025, we should know that, and that’s when we will start helping companies actually register in the USCIS system.

So, what are some updates in the past few years to the H-1B lottery? So, they started doing the online registration a few years ago, and originally, it was only $10 per registration, so per candidate that a company is registering. They have now increased the fee to $215 per registrant, which it still doesn’t sound that much, but it is a huge increase. So, this can definitely add up for some of these companies that are registering thousands of CAP candidates each year. And there are companies that register that many.

Kara, do you think this increase in fees will have a cooling effect on the number of candidates we see in total for this upcoming lottery?

Kara Lancaster: It may have a slight impact. I don’t know that it will be a major impact. Some of the larger companies that tend to put the most individuals into the lottery, I don’t think they’re going to change their strategy in terms of the volume of employees they are registering. I think they will just kind of absorb that additional cost for the most part. I think we may see smaller companies, small to midsize companies, maybe consider putting a smaller group of individuals into the lottery, perhaps just the people that are critical, right?

Meagan Dziura: Right.

Kara Lancaster: That really, really need the H-1B. And so, we might see a decrease in the number of registrants from those companies, but they don’t make up the large majority of the registrants, right?

Meagan Dziura: Right.

Kara Lancaster: So, I think overall, I don’t think we’ll see a huge impact from this fee increase.

Meagan Dziura: Yeah, I tend to agree, and this is on top of… This fee increase is on top of USCIS actually raised their fees for overall. So, I think companies have already been sort of trying to absorb the new cost. The like H-1B fee has gone up, premium processing fee went up, each H-1B now has an asylum fee that they have to pay. So, I think the $215 is pretty small compared to the actual H-1B fees that will be much higher, but those aren’t paid unless someone’s selected. This is just to register with USCIS. It doesn’t tie into the actual selection or the actual filing of the H-1B for selected people.

The other update, this was new last year, but it’s worth going over because it did make a huge impact. So, there was a lot of suspected misuse of the registration process because there’s no limit to the number of times a candidate can be inputted into the registration.

So, there’s a number of times the candidate can be put in the registration by one employer. So, one employer cannot put a candidate in multiple times. However, that candidate can have multiple employers put them into the lottery, and that’s not considered fraudulent or a misuse of the system as long as there are real employers who really intend to hire this candidate or sponsor this candidate for an H-1B if they’re already employed there. However, there were a lot of suspicions raised that companies were potentially misusing this by creating subsidiaries, or there could have been fraudulent companies misusing this that weren’t true companies, and employees were being put into the lottery when there was no actual intention to hire them, they would just file an H-1B for them, and then the employee would go and find real employment.

So, there was a lot of talk about this with USCIS, and they decided to change the way they were selecting CAP candidates. So, instead of using the individual selections where a candidate could be selected, if they had, we heard stories of 40 companies putting in one candidate, then that candidate could potentially be selected by multiple times using different registrants from the company. A beneficiary could take several spots that other candidates could have used. So now, each beneficiary, you’re required to put in their passport number; you can’t skip it. And so, each beneficiary can only be selected once. So even if a beneficiary put in say three, was put in three times, they can only get selected one time for one employer. So, hopefully, this cut down on the suspicions of fraud. Again, a beneficiary can still be put in multiple times from different companies, so that doesn’t go away. It’s just that the beneficiary themselves can only be selected once. And now that USCIS has announced that the CAP is officially closed for 2025 or the for fiscal year 2025, it does look like this worked.

In 2024, USCIS received around 408,000 registrations for beneficiaries that had multiple eligible registrations and then that were deemed real registrations. And in 2025, fiscal year 2025, USCIS only received 47,000 registrations for beneficiaries for multiple eligible registrations. So that’s a huge drop, which is good news for basically all companies because it means their candidates have a more fair way of being selected. So, hopefully, that will continue. USCIS hasn’t confirmed that they’re using that same selection process, but I think we can assume that they would be using it again just because it seems it was so successful on combating these suspicions of fraud.

So, like I said in the beginning of the episode, this does feel early to start talking about CAP prep, especially when USCIS has just announced that the fiscal year 2025 CAP is over. However, planning has already started for the majority of our clients at Ogletree. Kara, why don’t you talk a little bit about what have your clients already been doing for CAP planning?

Kara Lancaster: Yeah, so on our side, we’ve already started, especially for large clients, we’ve already started getting them kind of these big lists of their employee populations in terms of who’s eligible. And a lot of times these lists are just anybody who doesn’t already have an H-1B, so that’s individuals on L-1 visas, TN visas, E-3, visas, and certainly the F-1 students. And so, right now, clients are kind of taking that information, taking those lists, and kind of going back to the different business units within their organization to get that buy-in to explain to managers and HR, here’s who we recommend putting into the lottery. And just having those internal discussions to then ultimately be able to come back to us and let us know sort of here’s the final list, here’s everybody that we’re going to register. And so again, for those large clients, it’s a big undertaking when you have hundreds and hundreds of employees that are eligible to go into this lottery. So, we’re kind of in that phase of clients doing that internal piece first. And so, usually, once we get into the new year is when we’ll be able to start really ramping up contacting those employees and sort of preparing for the actual registration period.

Meagan Dziura: And that’s what I’m seeing too with the bigger clients, even some small one-off clients that I have that may only register one or two potentially student people on student visas, even they have been reaching out just to say, “Hey, can we make sure that this job that we want to sponsor someone in, make sure it’s actually eligible for the H-1B?” So, it’s a bit of combination of both getting that list together and confirming, of course, costs with businesses if it’s a large company and confirming just who companies need to sponsor. And I’ll talk a little bit about the timeline. Again, the exact dates haven’t been announced yet. Those are usually announced in the beginning of the year. So right now, as Kara said, we’re kind of reviewing information, confirming eligibility for people, working with companies to make sure they have their lists together. Just a pro-tip for all people who may be going into the CAP, you should have renewed passports because we do need the passport numbers.

So, if you have employees who you want to put into the CAP, a great idea to tell everyone to renew their passports in early March 2025, that’s generally when we would be registering the H-1B candidates. Usually that’s around March, I would say between 6th and 9th is when the registration opens, usually no later than April 1st or USCIS confirms the selected registrations, and that’s when it’s our office’s job to go and notify the company who is selected in the H-1B lottery. And then the filing period opens, and again, that’s usually around April 1st or early April through June 30th. It’s a 90-day filing window. And then, USCIS may during that time say, “Hey, we have more visas available.” They may announce a second round, or they may wait until we see how many actual filings they get out of the number of people that are registered. Because like I said, beneficiaries can be registered multiple times, even if they can only be selected once. And an employer may decide not to file an H-1B for someone, even if they’re selected, there’s no requirement that they file that H-1B and use that slot. So, USCIS may have more open slots after they see how many people actually filed for H-1Bs.

Kara Lancaster: Thank you for being with us today. Stay tuned for part two of our two-part series on H-1B visa applications.

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