H-1B Registration and Filing Process, and What To Do If You Have Not Been Selected

Written By: Alizeh Karmali

USCIS has now finished it’s selections for the H-1B Lottery for Fiscal Year 2024. A registrant’s USCIS online account will show one of the following statuses for each registration:

● Submitted: The registration has been submitted and is eligible for selection. If the initial selection process has been completed, the registration remains eligible, unless subsequently invalidated, for selection in any subsequent selections for the fiscal year for which it was submitted.

● Selected: Selected to file an H-1B cap petition.

● Not Selected: Not selected – not eligible to file an H-1B cap petition based on this registration.

● Denied: Multiple registrations were submitted by or on behalf of the same registrant for the same beneficiary. If denied as a duplicate registration, all registrations submitted by or on behalf of the same registrant for this beneficiary for the fiscal year are invalid.

● Invalidated- Failed Payment: A registration was submitted but the payment method was declined, not reconciled, disputed, or otherwise invalid.

From April 1, 2023, H-1B petitions should be filed within 90 days of receiving the selection notification. This means that the H-1B application deadline is June 30, 2023. Applications for the H-1B visa can only be made by registrants who were selected in the initial registration process. Selection in the registration stage does not guarantee a visa will be granted – it simply means that the application has moved to the next stage.

The following is required in order to file the H-1B petition:

● Labor Condition certificate from your employer

● Application ETA-9035 (LCA) to the United States Department of Labor for certification

● Employer’s agreement to pay you similar to those of other employees in that position

● Employer’s agreement to provide you with working conditions that will not negatively impact colleagues

● That there was no ongoing strike or shutdown taking place when the Labor Condition Application was being filed

● Once the certification has been given, your employer has to submit a Non-Immigrant Worker Petition form I-129, supporting documentation, and certified LCA to the relevant USCIS service center

● Upon approval of the Non-Immigrant Worker Petition, you may apply for the visa through the Online Non-Immigrant Visa Application system form DS-160

● You will have to attend an interview at your local U.S. Embassy or Consulate to get your visa

Employment in H-1B visa roles starts on October 1st of each year. This is the USCIS fiscal year, so all visas must be approved in time to begin working then. You may not enter the United States until ten days before your employment is contracted to begin. The H-1B status begins on the first day you enter the United States and lasts for an initial three years, for six years maximum. 

As mentioned on the USCIS website, current regulations allow certain students with a pending or approved cap-subject H-1B petition to remain in F-1 status during the cap-gap period. Cap-subject H-1B petitions that are timely filed for an eligible F-1 student that request a change of status to H-1B on October 1 qualify for a cap-gap extension. Once the petitioner timely files a request to change status to H-1B on October 1, the automatic cap-gap extension will begin. If the student’s H-1B petition is approved (or selected and approved if the registration requirement is suspended), the student’s cap-gap extension of status will continue through September 30. The cap-gap extension of status will automatically terminate if the student’s H-1B petition is denied, withdrawn, revoked, rejected, or is not selected, or if the change of status request is denied or withdrawn even if the H-1B petition is approved for consular processing.

If you were not selected in the H-1B lottery, there are still other options. USCIS will run up to two more lottery selections depending on how many petitions are filed based on the first lottery run. Some other options include:

● O-1 Visas for extraordinary ability or achievement: For individuals who possess extraordinary ability in the sciences, arts, education, business, or athletics, or who have a demonstrated record of extraordinary achievement in the motion picture or television industry and have been recognized nationally or internationally for those achievements.

● L-1 Visas for business expansion into the US: L-1A and L-1B visas are available for temporary intracompany transferees who work in managerial positions or who have specialized knowledge. These visas may be issued when an employer files a petition to receive authorization for qualified employees to be allowed to live and work in the United States.

● Country-specific options:

○ H-1B1: Allows employers to temporarily employ foreign workers from Chile and Singapore in the United States on a nonimmigrant basis in speciality occupations.

○ E-3: Applies only to Australia nationals. You must be coming to the United States solely to perform services in a specialty occupation. The specialty occupation requires theoretical and practical application of a body of highly specialized knowledge and the attainment of a bachelor’s or higher degree in the specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States. (see USCIS website)

○ TN: Permits qualified Canadian and Mexican citizens to seek temporary entry into the United States to engage in business activities at a professional level (accountants, engineers, lawyers, pharmacists, scientists, and teachers).

SOURCES https://homeabroadinc.com/h1b-visa-lottery-2023/ https://www.nnuimmigration.com/h1b-application-deadline/ https://rjimmigrationlaw.com/resources/what-are-some-alternatives-to-the-h-1b-visa/ https://www.visa2us.com/h1b-visa https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/extension-of-post-completion-optional-practical-training-opt-and-f-1-status-for-eligible-students https://www.uscis.gov/forms/explore-my-options/l-visas-l-1a-and-l-1b-for-temporary-workers https://www.dol.gov/agencies/eta/foreign-labor/programs/h-1b https://www.uscis.gov/working-in-the-united-states/temporary-workers/e-3-specialty-occupation-workers-from-australia https://www.uscis.gov/working-in-the-united-states/temporary-workers/tn-nafta-professionals