H-1B Planning Alert: Registration Window Opens March 1st

Employers who are interested in petitioning for H-1B status for noncitizen professionals should begin the planning process now, as the March 1st date for registration in the lottery will soon be upon us. The H-1B program is one means to employ foreign college graduates who are on optional practical training, as well as other noncitizen professionals.

Last year, U.S. Citizenship and Immigration Services began a new system for the H-1B program. The Government now requires employers to register for the annual H-1B lottery before filing. The window for registering a potential H-1B application opens on March 1st, and closes on March 20th. The agency then conducts its lottery, and informs those that are selected. The selected ones then can file the H-1B status between April 1st and June 30th, for a start date no sooner than October 1st.

The Administration has introduced new regulations in the past year impact prevailing wage calculations, off-site employment, filing fees, and lottery selection. The rules have been the subject of litigation and public comment, and it is not clear whether they will impact this year’s H-1B application process. Indeed, they may not, as federal courts have halted some of the wage calculation and off-site employment rules, and another rule related to lottery selection has not been finalized and is also likely to be challenged in court if implemented.

H-1B adjudications are less predictable than they once were. USCIS has shown itself to be erratic in the adjudication of these applications. Some professional occupations and jobs are much better suited for the visa classification than are others. Employers also much commit to paying the greater of the prevailing or actual wage for the position. Under current rules, the H-1B is usually granted for three years, and renewable for another three years. It is permissible to pursue permanent residence while in H-1B status, and it is usually best to review eligibility for permanent residence early in the process, when applicable.

We routinely prepare H-1B petitions, and stay atop of all the changes in regulation and policy. We are happy to discuss particulars, and recommend planning now for the March 1st registration period, since that only comes around once per year.