US Citizenship and Immigration Services (USCIS) held not one, not two, but three lotteries in an effort to dole out its allotment of 85,000 H-1B visas for the fiscal year 2022. Typically, there are far more registrations than available visas, and candidates have just a 30-40% chance of being selected, so this third draw was unprecedented.
This rare third lottery happened because not enough employers completed applications for the names drawn in the first two lotteries. There were still hundreds of thousands of applicants waiting in line for both the 65,000 visas allocated to the general category and for the 20,000 visas allocated to applicants with higher degrees earned in the US
While a third lottery is exciting news for folks who were, and are, still waiting their turn, an H-1B drawing so late in the game — and so close to next year’s H-1B cap season — might only make immigration more complicated for workers, companies, and the immigration lawyers who support them.
In this article, we dive into the background of this year’s unprecedented third H-1B lottery, share some thoughts on why it might have happened, and explain why Canada’s immigration policies, especially the Global Talent Stream, are so important right now for foreign nationals and tech companies in the US
Let’s jump in.
H-1B vs Canada: USCIS’s Rare Third Lottery May Be Too Little Too Late for Tech Companies and Immigration Lawyers
Since early 2020, the COVID-19 pandemic has derailed plans for both workers and companies for almost two years. Travel was restricted into the US, international students were forced to return home, and H-1B workers were laid off. Other than foreign healthcare workers, few others were allowed into the US, and many industries were in decline.
The fact that this third lottery almost overlaps with the start date of next year’s H-1B cap season only threatens to further complicate an already complicated visa process for companies, foreign nationals, and immigration lawyers alike.
This year’s third H-1B lottery was indeed a unique opportunity for applicants who weren’t selected in the two previous lotteries. But while this was a bit of good news for those waiting their turn, a third lottery more than six months after they initially filed for the H-1B was, for some, too little too late.
Anecdotally, some folks waiting for an H-1B visa might have already left the US and found a new job elsewhere. It is also possible that impatient employers rescinded job offers after this year’s first (or even second) H-1B lottery didn’t draw their registrant’s name. USCIS agreed to accept some petitions that were initially denied, providing a glimmer of hope for those affected.
Plus, the longer the H-1B lottery process drags on, the closer we get to next fiscal year’s H-1B cap season. The fact that this third lottery almost overlaps with the start of next year’s H-1B cap season only threatens to further complicate an already complicated visa process for companies, foreign nationals, and immigration lawyers alike.
The unprecedented H-1B process this year only emphasizes how risky it is for companies to rely solely on the H-1B visa to hire skilled workers, especially in the IT sector. Fortunately, Canada is a great alternative for companies that want to bring these skilled tech workers into North America.
Background on H-1B Lottery
The H-1B lottery is a random selection process conducted by the United States Citizenship and Immigration Services (USCIS) to allocate H-1B visas to eligible applicants. Held annually, the lottery typically takes place in April and is open to those who have submitted their initial petition during the designated filing period.
To qualify for the lottery, applicants must possess at least a bachelor’s degree in a specific field and have a job offer from a U.S. employer. The petitioning employer must file a petition on behalf of the applicant, including necessary documentation such as tax returns and proof of the employer’s legal authority to hire foreign workers.
The selection process is entirely random and does not consider the qualifications or experience of the applicants. USCIS uses a computer-generated system to select applicants for the available visas. Those who are selected will receive an approval notice, allowing them to apply for a visa at a consulate abroad. This process underscores the importance of submitting a well-prepared initial petition and securing a solid job offer from a U.S. employer.
Common Reasons for H-1B Denials
Several common reasons can lead to the denial of H-1B petitions. One primary reason is that the petitioning employer fails to meet the legal requirements for hiring foreign workers. This often includes inadequate documentation, such as missing tax returns or insufficient proof of the employer’s legal authority.
Another frequent cause of denial is that the job offer does not meet the criteria for a specialty occupation. This can occur if the employer does not provide a detailed job description or fails to demonstrate the necessity of hiring a foreign worker for the position.
Additional reasons for denial include the inability to prove a legitimate employer-employee relationship, insufficient documentation of the applicant’s qualifications, and failure to meet employment authorization requirements. Ensuring that all documentation is thorough and accurate is crucial for a successful H-1B petition.
Challenging an H-1B Denial
If an H-1B petition is denied, there are several avenues available to challenge the decision. One option is to file a motion to reconsider, requesting the USCIS to review the decision again. Another option is to file a motion to reopen, which allows the applicant to present new evidence to support their case.
Applicants may also appeal the decision to the Administrative Appeals Office (AAO) or the Board of Immigration Appeals (BIA). However, these processes can be lengthy and may not always result in a favorable outcome.
In some instances, filing a new petition might be a viable option, though it can be complex and time-consuming. Consulting with an experienced immigration attorney is often the best course of action to determine the most effective strategy for challenging an H-1B denial.
Impact on Tech Companies and Immigration Lawyers
The H-1B program significantly impacts tech companies and immigration lawyers. Tech companies heavily rely on the H-1B program to hire foreign workers with specialized skills, such as software engineers and data scientists. However, the program’s limitations and complexities can make it challenging for companies to secure the talent they need.
Immigration lawyers play a crucial role in assisting tech companies with navigating the H-1B program. They help prepare and file petitions, represent companies in appeals and litigation, and provide guidance on compliance with immigration laws. Despite their expertise, the program’s intricacies can pose challenges for lawyers in delivering effective representation.
Canada’s Global Talent Stream offers an alternative to the H-1B visa for permanent residence
One of the best routes into North America for skilled tech workers is the Global Talent Stream (GTS) which Canada launched in 2017 as a way to attract highly skilled workers. Since its founding, tens of thousands of skilled foreign workers have moved to Canada via GTS.
GTS has enabled Canadian companies to grow with specialized talent from all over the world, and it has drawn thousands of highly skilled professionals to Canada.
The GTS — part of Canada’s Global Skills Strategy — empowers Canadian employers to speed up the process of hiring foreign workers to fill specialized jobs. In less than two weeks you can get authorization to work in Canada through GTS, which is hands down Canada’s fastest immigration pathway for workers.
To be eligible, you must have a job offer from a Canadian employer that is seeking workers for a unique, specialized, or high-skilled and in-demand occupation that can be found on a Global Talent Occupations List – a list that is updated frequently.
The Global Talent Stream is a popular immigration pathway for two main reasons: expedited processing means that workers can have a work permit in approximately 10 days, and the program is an excellent pathway to permanent residence in Canada. You only need one year of Canadian work experience to qualify for permanent residency.
GTS has enabled Canadian companies to grow with specialized talent from all over the world, and it has drawn thousands of highly skilled professionals to Canada.
In recent years, many tech workers who might have considered the US in the past are instead opting for Canada because of the challenges, complexity, and confusion of America’s immigration policies, especially for their H-1B visa.
This may be easy for companies with an office in Canada. But for the majority of US companies that don’t have a Canadian presence, can you still take advantage of Canada’s GTS program?
The answer is a resounding yes.
And the way you do that is with a PEO.
US companies can hire in Canada through an EOR and avoid the H-1B employment authorization program
An Employer of Record — like Syndesus — enables a US-based company to remotely hire international professionals abroad (in this example, in Canada) without tying them to a specific employer, unlike the U.S. H-1B visa which is employer-dependent. Legally, the EOR hires the employee and keeps them on the Canadian payroll.
The EOR handles all the technical aspects of employment like handing out paychecks, managing employee benefits, payroll, HR, and more. This way the employer can focus on the day-to-day management of their employees while the PEO handles all the nitty-gritty details. As a PEO, Syndesus can hire your current, or prospective, US employee in Canada on behalf of your company if you don’t have a legal presence in Canada. The company still controls the employee’s day-to-day responsibilities, pays their salary, can offer stock options or other benefits, and more. Essentially, it’s as if the US company had an office in Canada.
It’s a win for the company since they hire or retain a key employee. And it’s a win for the individual who may be tired of the H-1B lottery or wants to avoid it altogether.
Efficient Process for Navigating the H-1B Program
Navigating the H-1B program can be daunting, but there are steps that companies and applicants can take to streamline the process. One essential step is to collaborate with an experienced immigration attorney who can offer guidance and representation throughout the process.
Carefully preparing and filing the initial petition, including all required documentation and evidence, is crucial to avoid delays and denials. Ensuring that the petition is thorough and accurate can significantly improve the chances of success.
Applicants should also prepare for the lottery by submitting their petition during the filing period and confirming that they meet all eligibility requirements. Taking these proactive steps can help make the H-1B process more efficient and increase the likelihood of a favorable outcome.
Expertise in H-1B Litigation
H-1B litigation demands specialized expertise and a deep understanding of the program’s complexities and limitations. Experienced immigration attorneys can provide effective representation in appeals and litigation, helping companies and applicants navigate the intricate H-1B landscape.
Attorneys with expertise in H-1B litigation can assist in challenging denials, filing motions to reconsider and reopen, and appealing decisions to the AAO and BIA. They offer valuable guidance on the best course of action for each case and represent clients in court when necessary.
Overall, the H-1B program is a complex and challenging process that requires specialized knowledge and expertise. By working with experienced immigration attorneys and meticulously preparing petitions, companies and applicants can navigate the program more efficiently and effectively.
Let Syndesus help you hire the talent you need with a job offer and avoid the H-1B lottery process
As an EOR, Syndesus can hire your current, or prospective, US employee in Canada on behalf of your company if you don’t have a legal presence in Canada. As mentioned above, Syndesus takes care of the immigration, billing, HR, legal and other paperwork, and, once approved, the employee can move to Canada and keep working!
Reach out to us to learn more about how we help US companies keep skilled tech workers by moving them up to Canada.
And if you’re a tech worker in the US and you’re looking to move to Canada and work for a Canadian company, join our Path to Canada database to get matched with a Canadian tech employer!