H-1B Cap Lottery March 2023: Why You Probably Won't Win....
This post explains the frustrating reality ahead for employers and candidates seeking 'new' H-1Bs.
By all means, if an employer is willing to sponsor you for an H-1B in the March 2023 H-1B cap lottery, you should pursue it. You can read all about the H-1B lottery process here. My firm will certainly be filing a good number of lottery cases and we will do our best to get as many cases through as possible.
But the reality is that your chance of winning the H-1B cap lottery will very likely be worse than any other year in history. There could easily be over 500,000 registrations for only 85,000 new H-1B visa petition approvals available.
Just too many people want a very limited number of visas.
The following are some of the reasons I think the March 2023 H-1B cap lottery will be a disaster:
01 - The Trendline for H-1B Cap Registrations.
The electronic registration system currently in place was first run in March 2020 (in the peak of the pandemic) when President Trump was still President. For that lottery, despite those headwinds (Trump hostility to H-1Bs and a pandemic), there were about 274,000 registrations, a record at the time.
In theory the electronic registration system is great in that it makes it very easy for employers to try to obtain a new H-1B; but the problem is the system is basically TOO EASY and there are lots of speculative filings. The old system, despite its faults, created a useful barrier to entry that would limit speculative filings and kept the number cases seeking new H-1Bs lower. Without a barrier to entry, the number of filings has skyrocketed.
In year 2 of the electronic lottery system, in March 2021, the number of registrations went from 274k up to 308k.
And in March 2022, the number of registrations was a whopping 483k.
The trendline is clear that the number of registrations is increasing and there is really nothing to suggest the trendline will change for March 2023.
02 - The U.S. Job Market Remains Strong.
On January 6, 2023, the U.S. Department of Labor indicated the U.S. economy created 223,000 jobs (well above the estimate of 200,000), and the unemployment rate FELL to 3.5% . That is an extremely low unemployment rate.
Earlier in 2022, I thought the United States was headed into recession with the aggressive rise in interest rates by the Federal Reserve, but so far the U.S. job market has remained resilient (notwithstanding some high profile exceptions).
There are estimated to be 1.7 jobs for every job seeker. The whole world knows the United States remains a strong economy and the one of the ‘easiest ways’ to get into the U.S. job market is to have a consulting company sponsor you for an H-1B. This is extremely well known in the IT/software space. And so there will be, as there has been, thousands of consulting firm H-1B cases submitted in the lottery registration system.
03 - The High Profile Tech Company Layoffs will encourage Multiple Registrations.
At this point pretty much every high profile, large U.S. technology company has announced layoffs, hiring freezes, or both. These companies have over the last several years attracted a lot of interest by international students as large U.S. technology companies have traditionally been very willing to sponsor H-1B visas and they pay well.
But this year, given all the high profile layoffs, if you are a F-1 student working at Amazon or Twitter or Meta, will you simply rest on your laurels and hope to get chosen in the lottery by your one employer? Probably not!
In addition to having the ‘regular’ risk of not being chosen in the lottery due to excess demand, you have the additional risk that even if chosen, your position might be eliminated. That did happen in 2022 and will likely happen again in 2023.
So what will you do to mitigate risk, you will try to get sponsored by multiple employers, which is NOT prohibited — provided each employer has a good faith, bona fide job opportunity for you.
So if you are a hot-shot BSEE from Caltech, you will probably accept job offers and H-1B cap sponsorship from multiple employers to hedge your bets. And suddenly if the system has hundreds or maybe thousands of F-1 students thinking like this —- you can see there is a bit of a game theory problem and the number of registrations could increase exponentially.
04 - Every Year There are New Graduates combined with the Prior Year’s Lottery Losers.
There were a record number of lottery registrations from March 2022 meaning there were a record number of lottery LOSERS in March 2022. Sure, some of those people gave up and moved away but many obtained I-20s and got into a university offering “Day 1” Curricular Practical Training, or many continue to have OPT and/or STEM OPT so you will have a record number of lottery losers trying again, plus the ongoing F-1 students who graduate. This will just increase the overall number of people trying for H-1Bs.
Do you know anyone who tried for the H-1B cap lottery last year and will try again this year? I do!
Or maybe the question to ask is: Do you know anyone who tried last year and will NOT try again last year? (I barely do).
05 - Slow PERM labor certification processing will encourage more filings.
For some non-India/China graduates, their employers are willing to sponsor them for PERM and then try to get them through PERM and into the I-140/I-485 process and get them an EADAP work/travel document without dealing with the H-1B cap. This has been an increasingly attractive strategy; however, DOL PERM processing is so slow, even if you are trying for F1 to green card, you will likely still want your employer to sponsor you for an H-1B.
So the F-1 to green card cases are not taking anyone ‘off the table’ when it comes to the number of registrations.
06 - Visa Bulletin Cut-Off dates expanding to EB2 ROW (Rest of World) will encourage more filings.
For some non-India/China people going from F-1 to EB-2 NIW to green card, or maybe they are in L-1B visa status and being sponsored for a green card through PERM, even if they have enough time to get to the I-140 stage, the emerging issue of Visa Bulletin cut-off dates for ROW (Rest of World) mean that there are people who would like to do an end-run on the H-1B cap lottery are not able to do so, just adding yet another group of people seeking the finite capped visas.
For example, in our small firm, we are handling a PERM case for a L-1B engineer from Brazil. We had hoped to get through PERM and file the I-140/I-485 before the end of the candidate’s 5th year of L-1B time. But because of the emergence of cut-off dates for EB2 ROW (and the likely emergence of cut-off dates for EB3 ROW any month now), it is prudent for us to recommend the employer client to try to get the employee moved from L-1B to H-1B status as H-1Bs can be extended beyond 6 years (natural limit) whereas L-1B is capped at 5 years and not eligible for additional time based on inability to file I-485 due to the visa bulletin.
07 - Speculative Filings will increase.
The Trump Administration from January 2017 to December 2020 was hostile to H-1B filings and particularly to consulting firms. It has been a welcome return to normalcy on these issues under Biden but the ‘problem’ with normalcy is that the Trump Administration really scrutinized consulting firms and put a chilling effect on ‘speculative’ H-1B filings.
These days there is much less scrutiny by USCIS on consulting firm H-1B filings (although strangely the U.S. consulates are issuing a lot of 221g notices implying THEY are skeptical of speculative H-1Bs).
And based on anecdotal information I have heard from ‘sources’ in different sectors, I suspect there will be a record number of speculative H-1B cap filings in March 2023.
08 - A Record Number of Indians got Green Cards in the past 12 months; how many of them now have consulting firms set up to sponsor H-1Bs?
Traditionally a large number of H-1B cap cases were filed by consulting firms to benefit Indian-born beneficiaries. In the last 12 months, a record number of Indian-born employment-based immigrants got their green cards and some number of them now feel comfortable to set up their own consulting firms and sponsor people. I have been contacted by several such people and I’m one guy at a small firm. I can imagine this is going on all over the place.
This phenomena, on the margins, is yet another factor increasing the number of H-1B cap lottery submissions.
CONCLUDING THOUGHTS
As noted above, there are several reasons the H-1B cap lottery is probably going to be an epic disaster.
But what can you do? In the coming days and weeks I will try to post ideas on what employers and candidates can do, if they are not lucky in the H-1B cap lottery.
And I predict there are going to be lots of unlucky people.