An accounting firm hires a new graduate with a Bachelor of Science in Accounting degree from a local university for its audit team.  This new graduate is a foreign student utilizing the one-year Optional Practical Training (“OPT”) Employment Authorization offered to all F-1 students upon graduation.  The new employee is bright, articulate, and fits into the firm’s culture well.  Seeking to retain the services of this employee beyond the one year of OPT employment authorization, the employer’s human resources team consults with immigration counsel.  The usual prescription for this kind of case is an H-1B visa.  It’s an employment authorized visa that is valid for up to six years and makes a good bridge to an employment-based permanent residency petition.  However, due to recent changes in the allocation of new H-1B visas, this visa may no longer be a viable option.

Federal law limits the number of new H-1B visas issued every year to 85,000 and demand for this visa usually far outstrips supply.  In an effort to add balance, the United States Citizenship and Immigration Service (“USCIS”) conducts a random selection or lottery for these visas.  Due to recent changes in the selection process, the odds of an employer receiving an H-1 visa for an employee plummeted from 70% in 2008 (the first year of the H-1B lottery) to roughly one in four or 23%.  

In 2020, USCIS transitioned the H-1 allocation system from a paper-based application process that required an employer to submit a fully approvable petition and payment of thousands of dollars in filing fees to a minimalist online entry with a filing fee of $10.00.  While H-1B allocation regulations forbid an employer from entering an individual more than once, these regulations do not forbid an individual from submitting multiple entries from different employers.

Because the cost of entry is now so low, foreign nationals in high-demand occupations such as information technology use multiple employers to submit their names into the H-1B selection system multiple times.  This year, USCIS received 483,927 applications for H-1B visas from employers a 57% increase from last year.  Anticipating that people may be selected by the H-1B selection system more than once, this year USCIS selected 127,600 entries to receive 85,000 H-1B visas.  The practice of allowing multiple employers to submit the same person into the selection system puts individuals who have but one employer and one entry in the H-1 lottery at an ever-increasing disadvantage.  Unless Congress or USCIS addresses this imbalance and changes the allocation system to remove individuals who use multiple employers to enter the H-1 selection system more than once, this problem will continue unabated.

While the cost to enter the H-1 lottery is low enough for an employer to consider submitting an entry, employers that wish to retain F-1 OPT students beyond the one year of employment authorization issued from their school should not rely on receiving an H-1B visa.  Employers and foreign national students should consult with their counsel early in the process to explore and evaluate options beyond the H-1B visa and make a plan.