H-1B Cap Lottery: Are Chances Going to be Higher Next Year?

As we are just about to enter into this year’s H-1B cap lottery registration, we hear a common and interesting question from candidates and employers who are trying to evaluate the chances of selection under the lottery, “Would the chances of H-1B cap lottery selection be higher next year?” The answer is that different groups of candidates are likely to have significantly different chances for selection next year.

The main reason behind this concern is the delay of the H-1B cap wage selection rule which was set to become effective this year but which effective date was subsequently postponed to December 31, 2021.

H-1B Cap Selection Chances Much Better for Higher Paid Positions Starting March 2022.

Under the H-1B cap wage selection rule, which at this time is set to become effective on December 31, 2021, H-1B cap petitions for positions which have higher salary (under a higher wage level) will be given priority. For example, all Wage Level IV positions will be counted first, followed by Wage Levels III and II and, if there are any remaining H-1B visas left from under the total 85,000, they will be allocated to Wage Level I petitions.

According to preliminary analysis published by USCIS during the implementation of the H-1B cap wage selection rule, if it is assumed that the H-1B cap demand will remain unchanged from last year, it is anticipated that no Wage Level I cases will be selected and only a portion of Wage Level II will be selected for H-1B cap petition submission. The bulk of H-1B caps will be allocated to Wage Level III and IV petitions.

Because the wage levels reflect a position’s relative complexity and seniority but also take into account the geographic area and cost of living, we expect that there may be a significant number of H-1B cap petitions which may have a very low chance of selection next year.

Example: a recent bachelor’s (or even master’s) degree graduate who works at a startup or non-profit (possibly relatively low pay) in a high cost of living area such as San Francisco, CA, Seattle, WA or New York City, will likely be classified as Wage Level I or II which means that the chance for selection is going to be much lower compared to this year’s random allocation.

Chances for H-1B Cap Selection Higher This Year

While we do not know for sure, we anticipate that the chances for selection under the H-1B cap (based on random lottery) will be higher this year compared to next year (2022) (and assuming the wage selection rule is not reversed) for:

• entry-level H-1B positions
• lower paid H-1B positions
• high cost of living areas

IT Services and Staffing Companies May Need To Plan Carefully

Companies who rely on bringing first-time H-1B workers from outside of the U.S. should understand that for many non-senior positions the chances for selection under the H-1B cap lottery may be higher this year. Assuming the H-1B cap wage selection rule is in effect in 2022, many non-senior H-1B first-time petitions will have very low chance of selection.

Conclusion

As we go into this year’s H-1B cap lottery (March 9-March 25, 2021), we urge employers to consider the possibility that for many entry-level or non-senior positions the likelihood of selection under the random H-1B cap lottery will be higher this year compared to following years on the assumption that the H-1B cap wage selection rule will become effective on December 31, 2021.

If you wish to start a new H-1B work visa petition under this year’s quota, or if our office can be of any help, please contact us as soon as possible or submit our H-1B cap contact form.  Our attorneys and professionals stand ready to review your case, as part of our free initial consultation, and will help you prepare a strong H-1B application. Also, we invite you to subscribe to our free weekly newsletter to obtain further news and developments on this topic.