April 17, 2024

Ask Sophie: How realistic are my chances of hiring H-1B applicants at my startup?

This is another edition of “Ask Sophie,” the advice column that answers immigration-related questions about working at tech companies.

“Your questions are critical to the spread of knowledge that allows people around the world to rise above boundaries and follow their dreams,” he says Sophie Alcorn, a Silicon Valley immigration attorney. “Whether you’re a co-op person, a founder or looking for a job in Silicon Valley, I’d love to answer your questions in my next column.”

TechCrunch+ members get access to weekly “Ask Sophie” columns; use promo code ALCORN to purchase a one or two year subscription for 50% off.

Dear Sophie,

With over 750,000 H-1B registrations this year, is it realistic for my early stage startup to consider hiring sought-after candidates?

– Started skeptical

Dear Sir,

I know, I know: The numbers are there tough.

I understand your skepticism since the chances of companies getting their H-1B visa applicants selected in the annual lottery process is decreasing as employer demand for H-1B visas increases. Despite some well-publicized layoffs, many employers continue to hire, and the CHIPS Act of 2022 and the Infrastructure Investment and Jobs Act of 2021 are encouraging more job creation.

For this year’s H-1B lottery, US Citizenship and Immigration Services (USCIS) received 758,994 eligible registrations, and for the first time, more than half – nearly 408,900 – were H-1B applicants who had more than one employer registered in the lottery. (How does the annual lottery work? Watch my podcast for the overview.)

Again this year, with no second lottery on the horizon, these are important questions to ask.

Still, I believe it’s still worth registering employees in the annual H-1B lottery as part of a multiprong strategy to attract and retain international talent in the United States, because the six-year dual-purpose status is so valuable to companies and the staff members who hold it.

That’s true even if the USCIS implements a proposal to increase the H-1B lottery registration fee to $215, up from the recent $10 fee. While it’s a big increase, the extra $205 per registration is unlikely to be a limiting factor for early stage startups even considering the process.

The chance of an H-1B applicant being selected in the lottery has decreased significantly, especially since 2020, when USCIS implemented its online H-1B lottery registration system. Prior to 2020, companies seeking to enter an employee or prospective employee into the H-1B lottery had to submit a completed H-1B application.

This time-consuming, expensive and risky process often meant that participation in the H-1B lottery was unrealistic for most startups. In addition, companies had to be prepared to face the full filing fees at the time of the lottery, not knowing how many people would be selected and how many checks would be cashed. It’s now easy to register candidates, and companies have discretion over whether to continue with the full petition once they know someone has been selected.

Raising the annual cap of 85,000 H-1B visas (65,000 for those with bachelor’s degrees and 20,000 for those with master’s degrees or higher) requires congressional approval and remains highly unlikely. However, the USCIS could consider other administrative changes, such as limiting each H-1B applicant to one entry in the H-1B lottery regardless of whether that person has multiple offers of employment, to provide a more level playing field.

This year’s H-1B lottery

While it is not against the law to receive job offers from multiple companies that register an H-1B applicant in the lottery, the USCIS indicated that it would scrutinize H-1B beneficiaries, companies, and applications for potential abuses and fraud.

After this year’s lottery, the USCIS said:

Due to the large number of eligible registrations for beneficiaries with multiple qualifying registrations — much more than in previous years — serious concerns have arisen that some may have tried to gain an unfair advantage by working together to submit multiple registrations on behalf of the same beneficiary. This may have unfairly increased her chances of selection.

If any of your early stage employees are on F-1 Optional Practical Training (OPT) or STEM OPT, the two-year extension for students who graduated in a STEM field, be sure to enter them into the H-1B lottery each March until they are selected before they graduate and while maintaining OPT and STEM OPT status. You can also look at other visa options.

Visas for citizens of specific countries

You have other options if your startup’s employees or potential employees are not selected in the H-1B lottery. There are a handful of work visas aimed at individuals from certain countries. If any of your employees or potential employees are from Australia, Canada, Chile, Mexico or Singapore, these are great options to consider:

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