Dear Sophie: When can I register my employee for the H-1B lottery?

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,

We’re a pre-seed startup thinking about sponsoring an early employee’s H-1B visa to stay in the U.S. and work for us.

How does the process work?

— Seeking in San Mateo

Dear Seeking,

Thank you for granting peace of mind to your employee by planning now for H-1B sponsorship. This step means a lot to professionals early in their careers, many of whom paid full tuition for their U.S. bachelor’s and master’s degrees in order to have this chance.

Your startup can certainly register your employee for the H-1B lottery sometime in Q1 2023, but the government has not yet said when the registration window opens. If your employee is selected in the lottery, your startup can prepare, submit and pay the required fees to U.S Citizenship and Immigration Services (USCIS) for an H-1B filing.

I highly recommend working with an experienced startup immigration attorney to support the process, particularly since USCIS tends to scrutinize early-stage companies more. An attorney can help you avoid missteps and submit a strong visa application while staying within your budget.

Consider the level of service you need

Most immigration attorneys charge flat fees for their services, but the fees, level of service, responsiveness and the amount of counseling and guidance can vary significantly, so look for a law firm that meets your needs. It’s also important to find an attorney you feel comfortable with.

It’s never too early to start preparing

Start assembling the documents you will need to submit as soon as you can. Your startup will need to be incorporated and receive its tax ID number from the IRS to prove that it is capable of sponsoring an individual for an H-1B. This needs to be done before your company submits a Labor Condition Application (LCA), which is also sent to the Labor Department. This application cannot be submitted more than six months before your employee will begin working on an H-1B.

An approved LCA must be submitted with your H-1B petition to USCIS. In addition to your startup’s tax ID, you’ll need some basics such as:

• A job description for your beneficiary (the individual your company is sponsoring) and the minimum requirements for the position.
• A job offer letter to the H-1B candidate, including job title, detailed duties, benefits, salary and start date. The earliest start date on an H-1B, if they’re selected in the lottery in 2023, will be October 1, 2023, which is the beginning of the new federal fiscal year.
• Your company’s articles of incorporation, term sheet and cap tables if your startup was formed recently.
• Your company’s bank statements, tax returns and other financial documents that show it can pay the prevailing wage for the candidate’s position and location.
• Marketing materials, company reports, pitch deck, business plan and screenshots of the company website that shows your startup is operating.

Your H-1B candidate will need:

• A current resume.
• Diplomas, certificates and transcripts.
• Current and past immigration documents, such as an I-20, I-797 and DS-2019.
• Translations of any documents not in English along with a certified translation document.

H-1B lottery registration nitty gritties

You can register your employee online for the H-1B lottery in March 2023. USCIS’ fee for registering an employee in the lottery is only $10, but make sure you only register the employee once in the lottery. Individuals who are registered by the same company more than once are automatically disqualified.

If you don’t already have a USCIS account, your attorney will guide you to first create one as a “registrant,” or sponsoring company, regardless of whether an attorney or accredited representative will register your H-1B candidate. Here are some resources offered by USCIS for the H-1B registration process:

• H-1B Electronic Registration Process page: It hasn’t yet been updated with 2023 (fiscal year 2024) H-1B lottery registration info, but it’s still helpful.
• The H-1B Electronic Registration Process video, which shows the steps you need to take and what the online system looks like.

Your attorney will link to your company profile through the portal and pay the $10 registration fee.

What are the odds?

It’s uncertain how the wave of layoffs at tech companies will influence the chances of your H-1B candidate being selected in the lottery. Either way, you should be prepared with a backup plan in case they aren’t selected.

If your employee doesn’t get selected in the lottery in March, you can enter them in the lottery the following year as long as they can maintain their immigration status until the 2024 H-1B lottery.

Submitting a strong H-1B petition

You will be notified by April 1 whether your employee has been selected in the 2023 lottery. If selected, you will have until June 30 to submit an H-1B petition to USCIS.

I often recommend paying the $2,500 fee for premium processing for the H-1B petition depending on the beneficiary’s start date and when their current immigration status expires. With premium processing USCIS guarantees it will decide on a case within 15 days. Premium processing also has the added benefit that USCIS will communicate via email.

Some fear that premium processing means a higher risk of receiving an RFE or denial, but I can officially attest that is not true. In fact, premium processing ensures better communication with USCIS, which is valuable if you’re filing a complex H-1B case. Also, if your case is denied, you can request a supervisory review if you paid for premium processing.

All the best to you in the H-1B process and in scaling your startup!

— Sophie

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The information provided in “Dear Sophie” is general information and not legal advice. For more information on the limitations of “Dear Sophie,” please view our full disclaimer. “Dear Sophie” is a federally registered trademark. You can contact Sophie directly at Alcorn Immigration Law.

Sophie’s podcast, Immigration Law for Tech Startups, is available on all major platforms. If you’d like to be a guest, she’s accepting applications!