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

Here’s another edition of “Ask Sophie,” the advice column that answers immigration-related questions about working at technology companies.

“Your questions are vital to the spread of knowledge that allows people all over the world to rise above borders and pursue their dreams,” says Sophie Alcorn, a Silicon Valley immigration attorney. “Whether you’re in people ops, a founder or seeking a job in Silicon Valley, I would love to answer your questions in my next column.”

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Dear Sophie,

With more than 750,000 H-1B registrations this year, is it realistic for my early-stage startup to consider hiring candidates who are seeking them?

— Skeptical Startup

Dear Skeptical,

I know, I know: The numbers are intense.

I understand your skepticism given that the odds of companies getting their H-1B visa candidates selected in the annual lottery process have been on the decline as demand among employers for H-1B visas continues to rise. Despite some well-publicized layoffs, many employers continue to hire, plus the CHIPS Act of 2022 and the Infrastructure Investment and Jobs Act of 2021 are spurring more job creation.

For this year’s H-1B lottery, the U.S. Citizenship and Immigration Services (USCIS) received a whopping 758,994 eligible registrations, and for the first time, more than half — nearly 408,900 — were H-1B candidates who had more than one employer that registered them in the lottery. (How does the annual lottery work? Check out my podcast for an overview.)

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

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

That remains true even if the USCIS implements a proposal to increase the H-1B lottery registration fee to $215, up from the recent $10 fee. Although it’s a large increase, the additional $205 per registration likely won’t be a limiting factor for even early-stage startups considering the process.

The chances of having an H-1B candidate picked in the lottery has dropped dramatically, particularly since 2020, when the USCIS implemented its online H-1B lottery registration system. Before 2020, companies that wanted to enter an employee or prospective employee in the H-1B lottery had to submit a completed H-1B application.

This time-intensive, costly, and risky process often meant that participating in the H-1B lottery was unrealistic for most startups. Additionally, companies had to be ready to front 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. Now it’s easy to register candidates, and companies have discretion about whether to proceed with the full petition after knowing whether somebody was 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 or higher degrees) requires congressional approval and remains highly unlikely. However, the USCIS could look at alternative administrative changes, such as limiting each H-1B candidate to one entry in the H-1B lottery regardless if that individual has multiple job offers, in order to provide a more level playing field.

This year’s H-1B lottery

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

After this year’s lottery, the USCIS stated:

The large number of eligible registrations for beneficiaries with multiple eligible registrations — much larger than in previous years — has raised serious concerns 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 their 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, make sure to enter them in the H-1B lottery every March until they are selected before they graduate and while they are maintaining OPT and STEM OPT status. You can look at other visa alternatives as well.

Visas for citizens of specific countries

You have other options if your startup’s employees or prospective employees aren’t 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 prospective employees are from Australia, Canada, Chile, Mexico, or Singapore, these are great options to consider: