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Your H-1B application was picked in the lottery - what now?

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This year, as you likely know, USCIS put in place a new system for cap-subject H-1B petitions. Starting March 1, every company wanting to apply for an H-1B had to register for a USCIS account, enter some extremely basic information about their company and their employee, and pay a $10 fee. The registration period closed on March 21, and USCIS completed the selections this past weekend. Those selected have a window from April 1 to June 30 in which to file the complete H-1B application.

What now?

H-1Bs have been getting harder and harder the last few years. As we’ve written about here on multiple occasions, the Trump administration has launched a war on these and other visas. They’re pushing back on issues that they never previously pushed back on, and looking for reasons to deny. Requests for evidence - where the Government sends often extremely long and convoluted requests for additional information - have become almost a matter of course.

These changes all started under the old system. In previous years, an initial H-1B filing had to be complete right off the bat. That is, when the window for applications opened (on April 1) the employer had to be prepared with everything - a prevailing wage certification from the Department of Labor, corporate documents (certificate of incorporation, tax returns), information about the position, and the qualifications of the beneficiary, among others requirements - at the time of filing.

This made the previous years’ filings somewhat difficult needles to thread. We had to send enough information to get a case approved, in the limited amount of time we and the employer had to work on it, while also making sure there was some evidence we had in reserve to give to the Government if they challenged the case with a Request for Evidence. We didn’t always win, but we’ve had a lot of success fighting the Trump Administration on these.

The new system solves some of these challenges, but creates some new ones. On the positive side, our clients and us are not spending time and energy on applications that are not picked in the lottery. On the other hand, it seems like a lot of companies took advantage of the ease of initial entries. That means there were a lot more entrants in the H-1B lottery than in previous years and, consequently, a lower acceptance rate.

The ease of initial registration and higher rate of entry also means that there are going to be companies with lottery winning petitions who don’t know what’s coming. Maybe they’re filing for the first time, or maybe they haven’t filed in years. Either way, they may not be prepared for the battle that is H-1Bs in the Trump era. The new system, while making it much easier to enter the lottery, is not going to make it any easier to get an H-1B approved. Luckily, even companies that filed an H-1B on their own can hire an immigration lawyer with H-1B experience to complete the full application after selection. It’s hard enough to win these cases with a qualified lawyer. Trying to do it without one is a recipe for denial.

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