Episode 36: BAL Immigration Report: Analysis of the second H-1B registration lottery

It’s Aug. 10, and this is your BAL Immigration Report.

• Lawmakers introduce a new name, image and likeness bill.
• The U.S. curtails consular services in Niger.
• A closer look at USCIS’ second H-1B lottery.

“I think the thing that surprised most of us was just the massive increase in selection numbers compared to what we’d seen previously.”

—Matthew Dillinger, BAL Senior Associate

U.S. news

NIL legislation introduced

U.S. Sen. Chris Murphy of Connecticut and Rep. Lori Trahan of Massachusetts have introduced a bill that would allow international college athletes to market their name, image and likeness without losing their F-1 student visa status. Most international student athletes are in the United States on F-1 student visas, which permit work only in limited circumstances.

Current regulations do not address the difficulty foreign students have in using their NIL to earn money. Murphy and Trahan’s legislation aims to ensure that international student athletes can market their NIL in the same manner as their U.S. peers without losing their F-1 status. The two lawmakers have introduced NIL legislation before, but this is the first time they have included the provisions for F-1 students.

Nonemergency personnel evacuated from embassy

The U.S. Department of State ordered the temporary departure of nonemergency government personnel and family members from the U.S. Embassy in Niamey, Niger, due to a military coup against President Mohamed Bazoum. The embassy remains open only for emergency assistance to U.S. citizens.

The State Department updated its travel advisory on Niger to Level 4: Do Not Travel. The department advised Americans in the country to limit unnecessary movement around Niamey to avoid ongoing military action and civil unrest.

U.S. news roundup

• S. Citizenship and Immigration Services updated filing instructions for L-1 petitions.
• The State Department published the September Visa Bulletin, showing no or modest movement in key employment-based categories.
• In a Q&A posted to com, Tiffany Derentz and Paulina Morelos detail how delays in passport issuance can disrupt business — and the options available to employers.

Spotlight

A conversation with Matthew Dillinger, BAL senior associate: analysis of the second H-1B registration lottery.

BAL Immigration Report: Last spring, USCIS released data showing that it had selected roughly 111,000 of about 781,000 total registrations, an initial selection rate of about 15%. The agency completed a second lottery in late July. And while the lottery itself was not a surprise, the number of registrations selected — nearly 78,000 — did raise some eyebrows. Matt Dillinger, a senior associate attorney in BAL’s office in Austin, Texas, joined us.

Dillinger: We were all expecting a second lottery this year, for a number of reasons. I think the thing that surprised most of us was just the massive increase in selection numbers compared to what we’d seen previously. In previous years, when we have seen second or even third selections, they’ve been so much smaller, so this year seeing that increase was a relief and felt almost like a return to normalcy.

BAL: USCIS began using the H-1B registration system in 2020. The agency conducted two lotteries in 2020. It conducted three in 2021 and just one in 2022. In that time, the number of registrations has continued to skyrocket — from about 275,000 in 2020, to 309,000 in 2021, to nearly 484,000 in 2022. This year, total registrations reached nearly 781,000.

H-1B cap-subject visas are limited to just 85,000 per year, 20,000 of which are reserved for advanced degree holders. We ask Dillinger why cap season has played out so differently in each of the past four years.

Dillinger: I think it’s really hard for USCIS to predict accurately how many registrations they’ll need to select in order to hit the H-1B quota, because the fact that a case is selected does not mean that that H-1B will be utilized ultimately — it could be that the case is not submitted or that it’s not approved. One of the biggest changes that we’ve seen — and one of the most difficult things for USCIS this year — is the massive increase in registrations for beneficiaries who have multiple different eligible registrations with different petitioners. What that means is, in practice, there’s much more ability for those beneficiaries to pick and choose which petitioner they go with, so someone could be selected under multiple different submissions and choose their favorite.

BAL: The H-1B selection rate has plummeted in recent years. However, following this year’s second lottery, the overall selection rate of nearly 25% is roughly on par with last year’s rate of 27% percent — even given a surge in registrations. This suggests that a smaller percentage of selected registrations will result in approved H-1B visas. Dillinger says he has not seen an uptick in USCIS’ H-1B denial rate.

Dillinger: I can say that we are not seeing an increase in denial rates on cap petitions filed by our accounts. But keep in mind, those are generally larger accounts that have counsel. I think one thing that may be at play is that — because you can submit a registration now for just $10 if you do it in-house — there’s a lot more people doing this without counsel who may not be eligible, one, or you may see employers using registrations as a recruitment tool for people who may not even be in the U.S., and even if they’re selected, they may not ultimately want to come over. And it’s not as important for them as it has historically been for someone who’s in F-1 status and has only so many chances to stay in the U.S.

BAL: Wide-scale staff reductions at U.S. companies could be another factor.

Dillinger: I think these the layoffs that we’ve seen this year, particularly in the tech industry, certainly have had an impact on the amount of petitions filed for selected registrations, because those employers will typically submit a registration for every F-1 employee or every employee that will need H-1B sponsorship. Unfortunately, a lot of those people were impacted by the large number of layoffs, and that means these industry leaders that submitted a significant portion of the registrations will not be proceeding with the filings for those that were selected and laid off.

BAL: The H-1B program remains one of the primary ways for high-skilled foreign nationals to live and work in the U.S. With so much on the line, Dillinger has already heard questions about whether there will be a third lottery.

Dillinger: Well, absolutely, people are already asking about it. Certainly, those who were not selected in the first or second lottery this year are very curious whether we’ll see a third lottery round this year. It’s too early to tell. I think it’s a possibility, but with the significant number of selections in this second round, I think USCIS is trying to avoid that possibility. Either way, we’re not going to know if there is or is not going to be a third lottery this year until probably November, once the filing period for these second-round submissions has been completed. Even then, cases that are not submitted with premium processing will take longer, so they won’t ultimately know the number of cases that have been submitted and approved until mid to late November at the earliest.

Global news

Canada launches Recognized Employer Pilot

In Canada, the government has launched the Recognized Employer Pilot under the Temporary Foreign Worker Program. The three-year initiative is intended to address labor shortages and reduce paperwork for employers who have complied with program requirements when hiring foreign workers in the past. Program benefits include labor market impact assessments that are valid for 36 months and have a simplified application process.

The pilot will roll out in two phases: first, primary agriculture employers will be eligible in September 2023, then, all other employers in January 2024.

U.K. announces fines for employers, landlords

In the United Kingdom, the Home Office announced it will triple fines for employers and landlords who employ or rent property to illegal migrants starting in 2024.

Employers will face a civil penalty of £45,000 — about US$57,000 — for each illegal worker on a first offense, and £60,000 for repeat violations. The fines were previously £15,000 and £20,000, respectively.

Landlords’ fines will increase at a higher percentage, going from £80 to £5,000 per lodger and from £1,000 to £10,000 per occupier on first offense, with amounts doubling on repeat offenses.

Global news roundup

• South Africa has delayed the introduction of a new digital nomad visa.
• Russia launched a short-term e-visa program for nationals of 55 countries.
• The Spanish Supreme Court nullified a regulation limiting the time foreign residents can spend outside the country.

Follow us on X, and sign up for daily immigration updates. We’ll be back next week with more news from the world of corporate immigration.