Dear Sophie: Will the H-1B lottery be based on the highest wages?

Sophie Alcorn Contributor

Sophie Alcorn is the founder of Alcorn Immigration Law in Silicon Valley and 2019 Global Law Experts Awards’ “Law Firm of the Year in California for Entrepreneur Immigration Services.” She connects people with the businesses and opportunities that expand their lives.

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Here’s another edition of “Dear 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,

I graduated in December, and I’m currently working on OPT for an early-stage biotech startup. I’m not sure how much my employer knows about the H-1B lottery process or if they are planning to put me in the lottery.

I heard that the next lottery will not select H-1B candidates based on the highest salaries paid. What else should I know?

— Gifted Grad

Dear Gifted,

It’s great that you’re thinking ahead to the lottery! I recently chatted about the future of immigration, including work, climate change and more with futurist and inventor of the BANI Framework Jamais Cascio. This podcast sheds some light on the context of the global high-skilled immigration and future trends affecting the global labor market for the U.S. specifically.

For H-1B and other legal questions, as always, I recommend that your employer work with an experienced immigration attorney to guide you through the petition process.

No wage-based H-1B lottery yet!

The H-1B lottery in March will remain a random selection process, at least for now. In September, a federal district court judge invalidated a final rule issued by the U.S. Department of Homeland Security, which oversees U.S. Citizenship and Immigration Services (USCIS), that would have changed the H-1B lottery from a random selection process to one that prioritized the highest wages. A wage-based selection process for the H-1B lottery would have disadvantaged cash-strapped early-stage startups and recent university graduates, who typically earn entry-level wages.

According to an analysis by the National Foundation for American Policy, a random H-1B lottery process makes international students and graduates 54% more likely to get selected to apply for an H-1B compared to a wage-based selection process.

However, the Biden administration has supported a wage-based H-1B lottery system, so the Department of Homeland Security might one day try again to push for the change.

Image Credits: Joanna Buniak / Sophie Alcorn (opens in a new window)

Registration for the lottery

As you already know, the H-1B visa requires an employer to sponsor you, so make sure to discuss sponsorship with your employer as soon as possible so that you both can prepare. If your company doesn’t already have an immigration attorney, they will need to engage one ASAP. The attorney will walk them through creating an online USCIS account to register you and any other candidates they’d like in the lottery. Your company will have to pay the $10 non-refundable fee to register each candidate.