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My H-1B Registration was selected in the lottery: What are the next steps?

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This year, the H-1B registration period was open from March 1, 2023 (noon EST) until March 17, 2023 (noon EST).  USCIS indicated that they plan to notify the registrants  whether their registrations were selected or not by March 31.

How will I know if my registration has been selected?

The employers or the attorneys (if attorneys filed the registration on behalf of the employer) will be notified through their online USCIS account. The employee will not be notified of the selection, as the employee is o a beneficiary in the registration and the US company is the petitioner. The registrants (or the attorneys) should receive an email once USCIS runs the lottery and the case status in the online system has been updated and should also be able to see the status of the registration in their online system when they log in.

After USCIS runs the lottery, the case status will say one of the following:

  • Selected (this means the registration has been selected in the lottery and the employer will be able to file an H1b petition for the Beneficiary)
  • Not-Selected (this means that the registration has not been selected in the lottery)
  • Denied (this means that multiple registrations were submitted by the same registrant for the same beneficiary)
  • Invalidated-failed payment (This means that the payment method was declined, or is otherwise invalid)

My H-1B registration was selected. Does that mean my H-1B was approved?

No. The H-1B selection in the lottery only means that the employer will now have opportunity to file an H-1B petition for the Beneficiary with USCIS and USCIS will make a final decision on the petition and whether it meets the regulatory requirements.

Can the prospective employee file the petition, or does it have to be filed by the employer?

The H-1B petition needs to be filed and signed by the employer – the U.S. Company (who is the petitioner), as it is the employer who sponsors you for the H-1B visa/status. The Prospective Employee cannot file the H-1B petition.

When does the H-1B petition have to be filed?

The earliest date the H-1B petition can be filed will be April 1, 2023. In the past years, USCIS was accepting the petitions in the period from April 1 – June 30, 2023. While not officially confirmed yet, the dates are going to be probably the same this year.

Should the employer file the petition as a Change of Status or Consular Processing?

The petition should be filed as Consular Processing if the employee is living outside the U.S. If the employee is inside the U.S. on a valid non-immigrant visa status (not ESTA, as you cannot change status from ESTA), the petition could be filed as a change of status petition. One thing to keep in mind though is that the earliest start date for the H1b worker is October 1, 2023. You will be able to stay in the U.S. while your change of status petition is pending, but you may not work (unless your are still in a valid status and that status allows you to work).

If you are in the U.S. on a valid non-immigrant status but the status does not allow you to work, you will be able to stay in the U.S., but would not be able to work, and this period can be several months.

What will the company need to do to prepare an H-1B petition?

The Company will need to file a Labor Condition Application (“LCA”) with the Department of Labor. The Department of Labor will need to certify the LCA and the Company will need to file the certified LCA with your H1b petition.

The employer will then need to draft a Letter in which he will explain what the company does, what will be your job in the U.S., your qualifications and explain how the H1b requirements are met  (in a so called Employment letter). The employer will also need to prepare an I-129 form and all necessary supplements (H classification supplement and H1B Data Collection and Filing Fee Exemption Supplement). As part of the petition, the employer will also need to submit documents such as your educational documents (diplomas and transcripts), passport, and maintenance of status documents.

What is a cap-gap? Can I take advantage of cap-gap?

F-1 students who are in the U.S. on their OPT (or in their OPT grace period) can take advantage of so called “cap-gap”. To qualify for a cap-gap, your H1b petition must be filed as a change of status petition with a start date of October 1 (Please note that all cap-H1b petitions need to have a start date of October 1). The petition must be filed timely (before your F1 status in the US expires) and within the H1b filing period (April 1-June 30).

Once the petition is received by USCIS, the cap-gap extension will begin: You will be able to stay in the U.S. while your H1b petition is pending (or after it’s approved), and until you are able to start working on the H1b status (October 1). Please note that the cap-gap will be terminated if your petition is denied, withdrawn, revoked or rejected.

You may or may not be authorized to work during your cap-gap period, depending on whether your OPT EAD card is valid or not.

Example 1

If your H1b petition is received by USCIS while your EAD is still valid, you will be allowed to continue working for the company until USCIS makes a decision and if the petition is approved, until September 30 (on October 1, you would switch status to H1b status). For example, if your EAD expires on July 15 and the H1b change of status petition was timely filed with USCIS, you could continue working for the employer until September 30.

Example 2

Your OPT card expired in mid February and your grace period is up on April 15. The H1b petition is filed in the beginning of April and received by USCIS on April 10. In this case, you could stay in the US while the petition is pending, but you could not work. If the petition is approved, you can stay in the US until October 1, but again you will not be able to work.

When will I have a decision from USCIS on the petition?

If you or the employer pay for the premium processing, you will know a decision (approval, denial, or request for evidence) in 15 days. If you don’t pay for the Premium Processing, it will take several months, and depending on which Service Center will be processing the petition it can take quite a long time.

Who pays the USCIS filing fees?

Please see our blog post that lists the H-1B USCIS filing fees here. The employer needs to pay all the filing fees (except the premium processing fee that can be paid by the employee).

My H-1B registration was not selected. When can my employer try to go through the lottery again?

Unfortunately, your employer would need to wait until March of next year to submit a new registration in the lottery, unless you find a cap-exempt employer who could sponsor you at any time throughout the year. Please see our blog post on Cap-exempt employers here.

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