Each year, tens of thousands of skilled immigrants petition for the highly sought-after H-1B visa, which is available to those who have a bachelor’s degree or higher along with a specialty job that requires that degree. Due to the fact that so many people petition each year, the USCIS placed an annual limit on the number of H-1B visas issued and conducts an annual lottery to randomly select the petitions that go onto processing.
With The H-1B 2021 season right around the corner, we’re coming up fast on the 2020-2021 H1B lottery window. However, there are some changes that you can expect and should be aware of before filing. This year is shaping up to be very different from years prior. Let’s get into our H-1B 2021 lottery predictions.
IMPORTANT UPDATE: The USCIS has just announced that it has received sufficient H-1B registrations and has successfully conducted the 2021 lottery. To find out how you can see whether your registration was selected, read this update.
What is the H-1B Visa?
The H-1B visa is a non-immigrant visa that permits U.S. companies and employers to enlist professionals from specialty occupations overseas. With the H-1B visa, a foreign professional could work with the designated employer in the United States for a total of six years.
As usual, we predict that the H-1B requirements will remain the same as in previous years. However, as you will see later on, these requirements could very well change in the upcoming years. As of now, the requirements are as follows. You must:
- Have a job offer from a U.S. employer for a specialty position requiring a bachelor’s degree
- Possess at least the required bachelor’s degree
- Not be the sole proprietor of the sponsoring company
Your employer must also be able to pay you the prevailing wage and show that hiring you is a business necessity. Additionally, even though the rules have been relaxed a bit surrounding self-employment, you still cannot self-petition. To be able to use your own business as your H-1B employer for 2021, you will still need to set up a CEO or board of directors with the power to control your salary, duties, and employment status.
Your employer will also need to obtain a Labor Certification Application for you. This means that your employer must make four attestations to the Department of Labor:
- Your employment must not have a detrimental impact on the workers currently employed.
- The current employees must be notified of your employer’s intent to hire you.
- You must be paid the prevailing wage as a minimum. This is a wage that is calculated based on your position and geographic location.
- The job location must not be experiencing a lock-out or strike.
These measures are put in place to protect the current workers and to prevent employers from using foreign labor as an alternative or replacement for domestic workers. Therefore, getting an LCA should be your employer’s first step along the H-1B journey for 2021.
Compared to other nonimmigrant visas, the H-1B may seem easier due to the relatively low eligibility criteria. However, you need to take one thing into account: chance. The main thing that separates the H-1B from other visas is the annual lottery that takes place. Because of the fact that many more people register for the H-1B than there are slots available, the USCIS randomly selects 85,000 registrations to be sent to processing. Any that are not selected will have their registrations and fees returned to them.
What’s more, the H-1B visa allows foreign workers to be accompanied by their spouse and children (under 21) via the H4 Visa. While the demand for H-1B visas was lower last year compared to previous cap seasons, the visa lottery was still necessary as 190,098 visa petitions were received from April 1st to April 6th, 2018. If that’s any indication of the demand, then we can expect a lottery again this year.
New H-1B Registration System
There is a major change that is being implemented for the H-1B visa this year as opposed to years prior. In the past, sponsors submitted full petitions along with hefty filing fees and extensive supporting evidence whenever they wanted to enter a beneficiary into the lottery.
However, this is no longer going to be the case. The USCIS has created an online registration system to replace the old petitioning system. Sponsors will not create an account through the USCIS online portal (open as of February 24th, 2020). On March 1st, they will be able to submit one registration per beneficiary they are sponsoring through this portal. A registration involves submitting the beneficiary’s information along with a non-refundable $10 fee, which is much simpler and cheaper than filing a petition.
On March 20th, the registration submission window will close and no more registrations will be accepted. The USCIS will then conduct the random lottery from the submitted petitions and select 65,000 from the regular cap and 20,000 from the master’s cap as in previous years. On or before March 31st, the registrations will have their statuses changed to reflect the winners.
However, this new system does not make petitions obsolete. Those who are selected will still need to file petitions and have them approved in order to obtain an H-1B visa. The registrations simply replace petitions as the means to enter the lottery, not as the means to obtain a visa.
This means that the USCIS will only need to process the petitions of those that were selected in the lottery, saving thousands of man-hours and dollars on administration.
Be sure to read our complete guide on the H-1B visa for 2021 to find out more.
H-1B Lottery 2021 Predictions
While this new year brings with it many new changes, other aspects of the H-1B visa process and lottery will remain the same. Take a look at the following aspects of the H-1B visa to stay up-to-date on what to expect this year:
What is the H-1B Visa Cap?
The H-1B Visa cap, enforced by USCIS, has a congressionally mandated limit of 65,000 for the regular pool and an additional 20,000 for the advanced degree. This will be the same even with the new registration system. Be aware that not all H-1B nonimmigrant visas are subject to the annual cap.
Who is Exempt from the H-1B Cap?
In order to be considered a cap-exempt registration, you must have either been previously counted against the cap or have a position with a cap-exempt employer. Note that certain positions with qualified employers are not subject to the H-1B annual quota even if the candidate has not been counted against the cap previously.
An employer who is cap-exempt generally falls into one of the following categories:
- Non-profit organization. This is defined by the USCIS as an organization that is “primarily engaged in basic or applied research”
- Governmental Research Center
- Institute for Higher Education
Additionally, if you are already an H-1B visa holder and want to transfer employers or extend your status, then you have already been counted against the cap and your registration will be considered cap-exempt.
Keep in mind that transferring your status from one employer to the next has a caveat. If you originally came to the U.S. through a cap-exempt employer, then transferring to another cap-exempt employer is not a problem. However, if you decide to transfer to a cap-subject employer, you will need to go through the lottery process.
That employer will not be able to submit a registration until March 1st, your registration would need to be randomly selected in the cap, and you would not be able to switch employers until October 1st. Essentially, it would be like opening a brand new case. This is to prevent those who would enter the U.S. through a cap-exempt employer just to switch over to a cap-subject employer with the goal of subverting the lottery.
IMPORTANT UPDATE: Premium processing has been temporarily suspended for all cap-subject petitions in the 2021 season.
Premium processing is an optional service that the USCIS offers for certain petitions, the I-129 being one of them. For an additional fee of $1,440, the USCIS will process a petition in 15 calendar days rather than in the standard amount of time, which can take upwards of six months.
Also, remember that premium processing does not increase a petition’s chances of being selected in the lottery and it does not change the earliest starting date of all cap-subject beneficiaries, which is October 1st.
Masters Versus Regular Cap
You might be wondering what the difference is between the master’s advanced degree cap and the regular cap. In order to qualify for the master’s cap, the applicant must have a United States master’s degree (or higher). Note that only having an Associate’s Degree or Bachelor’s will not make you eligible. Likewise, if you’ve obtained a Master’s degree from a foreign institute, this will not qualify you for the cap.
Note that only having an associate’s degree or bachelor’s will not make you eligible. Likewise, if you’ve obtained a master’s degree from a foreign or unaccredited institute, this will not qualify you for the cap. You should stay up-to-date with the latest news about your institution to ensure that it is still accredited.
The advantage of being entered into the master’s cap is that you will essentially have two separate opportunities to be selected for a visa. In the past, the USCIS used to select the winners of the master’s cap first. Any registrations not selected in the master’s cap would then be re-entered into the regular cap for a second chance. This system for conducting H-1B lottery was last used in April 2018.
However, as of last year, the ordering for the master’s and regular cap has been reversed. Rather than having the master’s cap be performed first, the regular cap will be performed first in order to increase the percentage of master’s registrations that are selected.
The way this happens has to do with probability. When the regular cap is conducted, all registrations will be involved, including the master’s registrations. This means that, inevitably, some master’s registrations will be selected in the regular cap. Then, when the master’s cap is conducted afterward, there will be fewer master’s registrations as competition, since some have already been selected in the regular cap. This greatly increases the chances of a single master’s registration to be selected.
Upcoming H-1B 2021 Lottery Predictions- What to Expect
For the first time in several years, the data from previous years does little to inform the predictions for this upcoming year. Here is what we can expect based on what we know about the lottery and the H-1B climate:
- An increased demand for H-1B visas as a result of improvements in the job market
- An increased amount of competition as submitting a registration is much easier and cheaper than filing a petition.
How to Prepare for H-1B Visa 2020 Lottery
Since USCIS starts accepting registrations for the H-1B visa 2021 lottery on March 1st, you would benefit greatly by beginning preparations. The first thing you may want to do is secure a qualified H-1B visa attorney. The reason for this is fourfold.
Firstly, you will want to make sure that your registration is properly filed. This means that it correctly falls into either the regular or master’s cap. If a registration is incorrectly submitted into the master’s cap and is selected, it will be subsequently denied during processing. Because the rules surrounding admission into the master’s cap can be tricky, it’s best to have help.
Secondly, you want to avoid submitting multiple registrations for the same beneficiary, either purposefully or accidentally. Doing so will invalidate all of your registrations for that beneficiary and cause you to lose your chances of having him or her obtain an H-1B visa this year.
Third, once a registration is selected, the case has only just begun. Because denials and RFEs are on the rise, it is important to have an expert in your corner when the USCIS is processing your petition.
Fourth, we anticipate that the large volume of registrations will be too great for the system to handle. This could cause a failure of the system, which would immediately require sponsors to revert to the old petitioning system. If this were to happen, an attorney can help you have a petition ready to file in a timely fashion.
Are you a skilled professional working outside the U.S.? If so, the first step is to find a company willing to sponsor you. Take a look at this unofficial list of H-1B sponsors from recent years. [Disclaimer: We take no responsibility for inaccuracies of unofficial data sources.]
Preparations as an F-1 Student
If you’re currently an F-1 student then the preparations may vary slightly. You should be trying to get an internship or a job with a U.S. company and researching which sponsors are available for your desired time frame.
Remember though that if you withdraw from school while you’re on an F1 visa then you do not get the sixty-day grace period that some other visas receive.
H-1B Fee Predictions
One of the major changes that comes along with the new registration system is the implementation of a new fee. Each registration will require the payment of a $10 registration fee that will not be refunded if the registration is not selected in the lottery. This makes entering the lottery inexpensive and easy, and it also removes the need for the USCIS to process and return the petitions and fees back to the sponsors of those who were not selected.
However, if the registration is selected, then an I-129 petition will need to be subsequently filed and the following H-1B visa fees will need to be included:
- Basic filing fee – $460
- Anti-Fraud fee – $500
- Public law 114-113 fee – $4,000 (only if the sponsor has more than 50 employees with more than half on H-1B or L-1 status)
- ACWIA fee
- $750 (if the sponsor has fewer than 26 employees)
- $1,500 (if the sponsor has 26 or more employees
- Premium processing fee – $1,440 (optional)
These fees will need to be paid by the sponsor and not the beneficiary. This also goes for any attorney fees that might be incurred.
H-1B Grace Period Predictions 2020
After the Final Rule instituted in January of 2017, H-1B holders have been given a grace period that extends 60 days after the termination of your employment, provided that it does not exceed your I-94 arrival/departure card. This will give you time to either find new employment, change your status to a different visa, or prepare to leave the country. If you are still in the U.S. after the end of this grace period, you may be considered “out of status”, which could have serious consequences including a bar from future visits to the country. We predict that this grace period will still be extended to H-1B holders in 2020.
H-1B Future Under President Trump
One thing that our clients repeatedly come back to is this: how will President Trump’s policies affect my immigration case under H-1B status?
One of the changes that has been predicted is the removal of the H-1B lottery system in favor of a new system that gives preference to foreign professionals that earn a considerable salary. This has been proposed due to the fact that some consulting companies have flooded the lottery with petitions, making it increasingly more difficult to secure a position for anyone else. However, this change has been proposed as a bill and has not been passed.
The more tangible impact that the Trump administration has on the H-1B process is the increased scrutiny of cases. H-1B denials and requests for evidence (RFEs) have increased tremendously over the past three years and will likely continue to increase as more scrutiny is laid on H-1B visa applicants.
H-4 EAD Rule
In 2015, the Obama administration established a rule allowing H-4 holders (the spouses of H-1B holders) to apply for Employment Authorization Documents, allowing them to work while their spouse was under H-1B status. This is only available to the spouses of H-1B holders that have an I-140 immigrant visa (green card) petition pending with the USCIS.
As of now, this rule still stands. However, the new administration is reconsidering this rule and aims to remove it, meaning that the spouses of H-1B holders will need to find other means of working under their H-4 visas. We will be sure to keep you posted on the latest developments.
While these changes have not yet been put into place or even approved, it is still important to be aware of the fluctuations involved with immigration law.
If your registration is selected in the lottery, then your sponsor will need to file an I-129 petition on your behalf on or after April 1st. This petition must include the necessary filing fees as outlined above as well as any supporting documentation to reinforce your eligibility for the H-1B.
Next, the officer will examine your case and determine whether or not you qualify for the H-1B. If your petition fails this stage, it may be denied, requiring more extensive work to fix. If it passes, then you will be notified and you will be able to start working on October 1st if you are already in the U.S. and have a nonimmigrant status that will last you until then.
However, if that is not the case, you may need to go through an interview at the U.S. consulate or embassy in your home country. While, in the past, not everyone has had to go through an interview, our prediction for the 2020 H-1B season is that these interviews will become more mandatory.
H-1B Filing Tips
Take a look at these helpful tips for filing your petition correctly and maximizing your chances of selection.
1. Timing is Key
The H-1B is unique in that there are specific dates that must be respected in order to qualify. Take note of the following important dates for the new lottery system:
February 24th: Sponsors can create an account in the USCIS online portal.
March 1st: Sponsors can submit registrations for their beneficiaries through their accounts.
March 20th: The USCIS will stop accepting registrations.
March 31st: The USCIS will change the status of the submitted registrations to reflect the results of the lottery.
April 1st: Those that were selected in the lottery can file I-129 petitions.
October 1st: The beneficiaries of approved petitions can begin to work as H-1B employees.
2. File with Multiple Employers
If one employer submits several registrations for the same employee, they will be rejected. However, the employee can have multiple registrations submitted by different employers. Doing this can greatly increase your chances of being selected in the lottery. Also, one employer can submit registrations for several employees, as long as there is only one registration per employee.
3. Part-Time Work
The H-1B visa is not limited to full-time workers. If you only work part-time, this visa option may be for you.
3. Avoid Common Mistakes
In order to ensure that your petition has the best chance of being approved, avoid these common pitfalls that tend to result in rejections:
- If the employer’s Federal Employer Identification Number (FEIN) for an LCA is not recognized in the USCIS iCert system, then a pre-verification must take place. This can delay your petition approval by several days.
- Triple check the service center that will be receiving your petition. Sending it to the wrong center can seriously delay approval.
- Be sure to use an approved delivery method to submit your petition. USPS, FedEx, and UPS are all bonded delivery services that can be used.
- Work with your immigration attorney to make sure that your job description is thoroughly described in your petition.
- If your fee payments have been combined into one single check, you may experience delays in processing. Be sure to write separate checks for each individual payment.
- Make sure that your I-129 start date is correct and does not contain any mistakes or typos.
- Many people make the mistake in thinking that purchasing premium processing will secure them a spot in the lottery or otherwise increase their chances. This is not true. This feature only causes your I-129 to be processed in 15 days and does not change your employment start date.
- Make sure that all mandatory fees are paid by the employer. Should the USCIS learn that the employee paid these fees after the visa has been issued, there is a possibility that it could be revoked.
4. Consider Alternatives to the H-1B
If you and your immigration lawyer come to the conclusion that you do not qualify for the H-1B visa or you would be better served with another option, here are some alternatives.
- If you are a Canadian or Mexican citizen, the TN visa may be a better option. This visa class has a limited list of qualified occupations but offers easier application processes and unlimited renewals.
- The J-1 visa allows people from a variety of occupations to participate in a program that would sponsor them. These include, but are not limited to, students, doctors, nannies, camp counselors, and professors.
- Under the L-1 visa, an employer can have executives, managers, or specialty employees from an office outside the U.S. to one within its borders. This can also be a good way to start a new branch or subsidiary in the U.S.
- The O-1 visa allows people with extraordinary achievements in their field to work in the U.S. for a period of up to three years.
H-1B to Green Card Predictions
The process of going from an H-1B visa to a green card should remain the same for the 2020 season. If you are not aware of how to make this adjustment, here are the basic steps:
- Decide which green card works best for your situation
- Have your employer (current or new) obtain a PERM Labor Certification for you (unless you are applying for the EB-1 or EB-2 NIW)
- Have that sponsoring employer file an I-140 petition on your behalf.
- Wait until your petition has been approved and your priority date is current.
- File an I-485 to adjust your status to legal permanent resident.
Even though there are no changes to this process for 2020, it would be wise to keep an eye on the USCIS news site or this blog to see if there is any information that would impact your green card case.
H-1B 2020 Predictions FAQ
Can we expect more changes from the Trump administration concerning the H-1B?
President Trump and his administration have made it abundantly clear that they intend to do what they can to mitigate illegal immigration as well as the negative impact that legal immigration has on American workers. Their actions since the president’s election have backed this intention. With the final year of the term approaches, we can likely expect more H-1B changes to come.
How can I know if these changes will affect my case?
All of these H-1B changes may seem impactful, but you may not be sure if this is something you should be concerned with. If you are a beneficiary that does not qualify for the master’s cap, you may not need to worry about anything. However, for master’s cap immigrants and U.S. petitioning employers, it may be a different story. Your immigration attorney will be able to help you apply these changes to your case.
How can I stay updated on the H-1B changes?
The best way to stay updated is to subscribe to our monthly newsletter or to check the USCIS website regularly for news and updates.
How Will I Know If My Registration Has Been Selected?
On March 31st, logging onto your USCIS online portal should show that the status of your registration has changed, though it may also have stayed the same. Here are the four statuses you will see on your registration:
Selected: This status means that your registration has been selected in the lottery and your sponsor can go on to file a petition on April 1st.
Denied: This means that your registration was not deemed valid or qualified for the cap. We anticipate this status only being given to those that file multiple registrations for the same beneficiary.
Submitted: This just means that your registration has been received by the USCIS system. However, your registration may continue to say “Submitted” after March 31st. In fact, if your petition is not either “Selected” or “Denied”, it will remain as “Submitted” until October 1st.
Not Selected: This means that your registration was not chosen. However, because the USCIS may choose any valid registrations to fill the cap throughout the remainder of the fiscal year, a registration that is not chosen will only be changed to “Not Selected” on October 1st.
How Our Immigration Attorneys Can Help
Our expert team of attorneys has extensive experience and a great reputation for offering top-notch representation in H-1B visas, L-1 visas, and employment green card cases. We offer a highly competitive flat fee for H-1B filings and an initial consultation to review your case.
If you have any additional questions regarding the H-1B visa process or need more H-1B filing tips please don’t hesitate to fill out this form and see if you qualify for a free consultation.
Immi-USA also offers services in the following areas:
- H-1B, E, L, O, P, H-3, J, K and U Visas, as well as I-130 and I-140 Immigrant Petitions with Accompanying Adjustment of Status (I-485)
- EB-1 Extraordinary Ability Petition
- PERM Labor Certification with the Department of Labor
- EB-2 and EB-3 Employment-based Green Cards
- Investment Based and Treaty Trader Visas and EB-5 Green Card