April 7, 2024

As of March 27, 2024, U.S. Citizenship and Immigration Services (USCIS) initiated the dissemination of the H-1B cap lottery outcomes for fiscal year (FY) 2025 subsequent to announcing the sufficiency of registrations received during the initial registration period.

The announcement of selections took place within a week of the conclusion of the H-1B cap registration period. The H-1B lottery selections for this year were conducted over five days and finalized on April 1, 2024, with USCIS confirming the receipt of sufficient electronic registrations for individual beneficiaries during the initial registration period.

Related Post: Why USCIS Issues H-1B Requests for Evidence

Related Post: USCIS Unveils FY 2025 H-1B Registration Period and New Beneficiary-Centric System

Quick Hits

• The total count of H-1B registrations received for FY 2025 by USCIS remains undisclosed. The final rule, declared on January 30, 2024, has been integrated into the H-1B FY 2025 lottery process, influencing the selection criteria.
• For those not chosen in this year’s H-1B lottery, there may be opportunities to explore alternative avenues for maintaining employment authorization in the United States.

This year’s H-1B cap was highly anticipated, being the first lottery conducted after USCIS’s announcement of new safeguards and restrictions. These measures, outlined in a final rule issued on January 30, 2024, aimed at fortifying the integrity of the H-1B registration process and minimizing the risk of fraud. A primary goal was to ensure equitable selection opportunities for all beneficiaries, regardless of the number of registrations submitted on their behalf.

As per the rule, the selection process underwent refinement to prioritize “unique beneficiaries” over registrations. This revised methodology seeks to reduce fraudulent registrations by ensuring each registrant beneficiary has an equal chance of selection, irrespective of registration count.

In order to streamline this process, USCIS mandated that all registrants provide passport information or travel document.

Selected Registrants

Selected registrants began the H-1B petition filing period on April 1, 2024, scheduled to end on June 30, 2024.

• Applicants selected in the FY 2025 H-1B lottery may start their employment on October 1, 2024, which is the earliest H-1B start date permitted.
• In a first-time move, USCIS has introduced online filing of H-1B cap petitions, alongside the traditional paper filing method. USCIS highlighted that during the initial launch of online organizational accounts, users won’t have the capability to link paper-filed Forms I-129 and I-907 to their online accounts.
• For those selected, currently on OPT or STEM OPT expiring before October 1, 2024, may qualify for a “cap gap” extension. This extension applies to F-1 students named in an H-1B cap petition with a timely request for a change of status. The cap gap period begins upon the expiration of the F-1 student’s employment authorization and, unless terminated, ends on September 30.

Non-selected Registrants

For those registrants who were not selected initially, it’s crucial to understand that their status in the system will persist as “submitted” until USCIS verifies receipt of an adequate number of petitions to fulfill the H-1B cap for FY 2025.

However, registrants not chosen in the FY 2025 H-1B lottery may still have several alternative options to uphold their work authorization in the United States. Below are some of these options:

Curricular Practical Training (CPT)

F-1 nonimmigrant students, lawfully enrolled as full-time students at SEVP-certified schools, and having completed at least one full academic year of study, or in their first semesters of a graduate or higher degree program, may qualify for employment authorization through Curricular Practical Training (CPT). This employment must align with the student’s major field of study and be integral to the school’s curriculum, encompassing alternative work/study, internship, cooperative education, or other internship/practicum opportunities.

While a student can secure CPT authorization for multiple employers, work can only commence after approval by the school’s designated school official (DSO). Individuals engaged in full-time CPT for one year or more are ineligible for post-completion optional practical training (OPT) at the same educational level.

***It’s important to note that CPT does not change your visa status or provide any form of status or work authorization for dependents.

Optional Practical Training (OPT)

Individuals in F-1 nonimmigrant status may qualify for Optional Practical Training (OPT) employment authorization if they engage in employment directly related to their major field of study. OPT comprises two categories: (1) pre-completion OPT, and (2) post-completion OPT.

Pre-completion OPT may be accessible for F-1 students enrolled at an ICE SEVP-certified school who have been lawfully enrolled for at least one full academic year. During the academic term, individuals may be authorized to work up to twenty hours per week, and up to forty hours per week during school breaks.

Post-completion OPT may be available for F-1 students who have graduated from an ICE SEVP-certified school. Individuals working under post-completion OPT must maintain employment for at least twenty hours per week. An individual may be granted authorization to work under OPT for a maximum of twelve months, including both pre-completion and post-completion OPT periods.

***It’s important to note that OPT does not change your visa status or provide any form of status or work authorization for dependents.

STEM OPT

Registrants not selected who are presently authorized to work under OPT may qualify for STEM OPT if they obtained a qualifying STEM degree from a U.S. institution of higher education and if their employer is enrolled in E-Verify. This opportunity grants eligible individuals a twenty-four-month (two-year) Employment Authorization Document (EAD).

E-3

The E-3 category offers a nonimmigrant visa pathway tailored for Australian nationals employed in a specialty occupation. E-3 beneficiaries can receive employment authorization for a maximum of two years, with the possibility of indefinite extensions (with certain exceptions). Dependent spouses and children may qualify for E-3S or E-3Y status, respectively. E-3S spouses are eligible for work authorization and are deemed employment authorized incident to their status.

H-1B With a Cap-Exempt Employer

Individuals engaged in a specialty occupation may qualify for H-1B status even if they are not selected in the H-1B lottery, provided they are employed by a cap-exempt employer. Employers exempt from the H-1B cap may include qualifying higher education institutions or related nonprofit entities, nonprofit research organizations, and government research organizations.

Cap-exempt H-1B visa holders may obtain employment authorization initially for up to three years, with the possibility of extending in three-year increments. These visa holders may stay in H-1B status for a maximum of six years, with exceptions allowing extensions beyond the six-year period if specific criteria are met.

Spouses and children of cap-exempt H-1B visa holders may be eligible for H-4 status. However, H-4 spouses are not authorized to work unless certain conditions are fulfilled by the primary H-1B visa holder.

H-1B1

The H-1B1 category offers a nonimmigrant visa pathway tailored for individuals employed in a specialty occupation who are nationals of Chile or Singapore. Established under free trade agreements with Chile and Singapore, this visa category allows for H-1B1 visa status for up to 1,400 qualifying Chilean nationals and 5,400 qualifying Singaporean nationals annually.

Individuals in H-1B1 status may receive initial employment authorization for up to one year, with the option to extend their status indefinitely (with certain exceptions). Dependent spouses and children may qualify for H-4 status. However, H-4 spouses of H-1B1 visa holders are not authorized to work unless specific conditions are met by the primary H-1B1 visa holder.

L-1

The L-1 category is for individuals who worked abroad for a foreign company connected to a U.S. employer for at least one continuous year within the past three years. They need to have had a qualifying position outside and currently hold one within the U.S.

Those in executive or managerial roles may get L-1A status, while those in specialized roles may qualify for L-1B status. Both L-1A and L-1B visa holders can initially work for up to three years, with the possibility of extensions in two-year increments.

L-1A visa holders can stay in the U.S. for up to seven years, while L-1B visa holders can stay for up to five years. Dependent spouses and children may receive L-2S and L-2Y statuses, respectively. L-2S spouses are eligible to work and are considered employment authorized.

O-1

The O-1 category offers a nonimmigrant visa option for individuals with exceptional abilities in various fields, nationally or internationally recognized. To qualify, both the petitioner and beneficiary must demonstrate sustained acclaim, typically reaching the pinnacle of their field. Initial employment authorization under the O-1 category lasts up to three years, with the possibility of extensions. Moreover, dependents of O-1 visa holders may be eligible for O-3 nonimmigrant visa status, permitting them to reside in the United States, albeit without work authorization.

TN

The TN category, originally established under NAFTA and now under the USMCA, is designated for Canadian and Mexican citizens who meet specific professional criteria in certain occupational fields outlined by the USMCA. These professions include engineers, accountants, computer systems analysts, mathematicians, lawyers, and research assistants. Individuals granted TN status may initially receive employment authorization for up to three years, with the option for extensions. Dependent spouses and children may qualify for TD status; however, they are not permitted to work under this classification.

Next Steps

USCIS has not yet announced the possibility of additional selection rounds for the FY 2025 H-1B lottery process, nor have any indications been given about plans for such rounds. We will continue to monitor developments closely and provide updates on our blog as more information becomes available.