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No H-1B Visa Lottery Necessary for Institutes of Higher Education, Affiliated Non-Profits, and Government Agencies for Research

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By Jessabelle M. Koppelman, Esq. and Julie Oliver-Zhang, Esq.

If you have the right employer sponsor, you can apply for an H1b visa anytime of the year and have no need to win a spot in the H-1B lottery. Every year, USCIS sets aside 85,000 H-1B visas that are subject to the lottery process. But did you know that some organizations are exempt from the cap? Qualifying organizations do not need to undergo random selection to compete for limited H1b visas. Indeed, federal law allows certain organizations to forego the lottery process, specifically:

  1. Institutions of higher education;
  2. Non-profit organizations related to or affiliated with an institution of higher education;
  3. Non-profit research organizations; and
  4. Government research organizations.

See INA § 214(g)(5)(A)-(B).

Determining if your organization is exempt from the H-1B visa cap can be tricky. Let’s take a look at some of the fundamental characteristics of institutions of higher education and related or affiliated non-profits.

Institution of Higher Education

USCIS relies on the Higher Education Act of 1965’s definition of “institution of higher education.” Under the Act, key characteristics of a college university are:

  • Admits students with a certificate of graduation from a school that provides secondary education, or the equivalent;
  • Authorized in the State to provide an educational program beyond secondary education;
  • Provides an educational program that awards a bachelor’s degree or provides at least a two (2) year program that is acceptable towards a bachelor’s degree;
  • Is a public or other non-profit institution; and
  • Is accredited or pre-accredited.

Related to or Affiliated

The definition of an institute of higher education is clearly outlined, but how USCIS determines that a non-profit is “related to or affiliated” with such institutes is not as clear. To qualify for an H1b visa cap exemption, a non-profit petitioner can demonstrate that they are affiliated or related to an institution of higher education if they can prove at least one of the below prerequisites. Generally, that the non-profit is:

  • Associated through mutual ownership or control by the same board or federation;
  • Is operated by an institution of higher education; or
  • Is attached to an institution of higher education as a member, branch, cooperative, or subsidiary.

Non-profits need to provide proof that they qualify for this exemption. Some evidence that USCIS may consider includes but is not limited to, By-Laws and Articles of Incorporation, IRS 501(c)(3) Designation Letter, documentation listing the mutual Board of Directors members, and agreements between the non-profit and institute.

Oliver-Zhang Law’s immigration attorneys recognize that the H-1B visa process can be confusing. That’s why our professionals are committed to guiding you every step of the way. We even provide free immigration consultations for individuals and companies that want to learn more about H-1B visas.

Contact us today to inquire about our immigration services. Call our experienced H1B attorneys ready to provide you with the best services at (202) 643-1110 or email us at [email protected]. We look forward to working with you.

H-1B Visa Denial Rates Are at an All Time Low

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By Jessabelle M. Koppelman, Esq.

During the Trump Administration, we witnessed H-1B visa denial rates skyrocket with the passage of restrictive immigration policies. For example, former President Trump implemented policy instructing USCIS officers to stop giving deference to previously approved petitions when reviewing H1b visa extensions. Fortunately, President Biden has rescinded this policy during his administration

As some Trump immigration policies phase out, USCIS has drastically reduced H1b visa denials. Forbes reported that for fiscal year (“FY”) 2021, the denial rate fell to 4% for new H1b visa petitions. This trend is great news for U.S. companies looking to temporarily employ foreign nationals as diversifying your work force can lead to greater results and new ideas. Let’s take a look at how these numbers changed:

From FY 2017 to FY 2020, the average denial rate for new H1b visa petitions was just over 17%.
For FY 2018, denial rates rose all the way up to 24%.

FISCAL YEARDENIAL RATE
202013%
201921%
201824%
201713%

These numbers are high compared to the Obama Administration’s initial H1b visa denial rates.

FISCAL YEARDENIAL RATE
201610%
20156%
20148%
20137%

The same pattern is also true for continuing employment petitions (extensions for previously approved visas) as the denial rate was only 2% for FY 2021 – much lower than previous years.

FISCAL YEARDENIAL RATE
20207%
201912%
201812%
20175%

We recently saw less interest in the temporary work program. For FY 2021, USCIS received 274,237 H1b visa registrations. This number rose to 308,613 for FY 2022. The global pandemic also greatly hindered employment-based immigration positions.

The Biden Administration is taking steps towards reforming the H1b visa program. On January 21, 2022, they announced that the U.S. Department of Homeland Security expanded the list of degrees included in the STEM field that qualify for the Optional Practical Training program. To read how this expansion positively impacts H1B visas, click here.  

With H-1B visa petition submissions returning to normal, it is imperative that your initial application is in good condition. Our experienced immigration lawyers are here to assist you with the H1b visa process and the best legal services with dedicated attorneys. Oliver-Zhang law offers free immigration consultations. To speak with one of our immigration attorneys, please email us at [email protected]  or call us at 202-643-1110. H1b account registration has already begun, so call us today!

H-1B Lottery (FY 2023) Account Creation Opens February 21, 2022 – Are You Ready? Contact Oliver-Zhang Law TODAY!

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By Julie Oliver-Zhang, Esq. and Annjelika Slate

As we get further into 2022, the H-1B lottery opening day is steadily approaching. Mark your calendars for February 21, 2022 as to when you can begin creating an H-1B registration account. That is less than two weeks away! For those who meet specific requirements, H1B lottery will be the first step in the process of potentially living and working in the
United States. Below, we will discuss what USCIS means by “lottery” and what to expect as first steps.

The H-1B “lottery” was created as a random selection process to select cap-subject H1B petitions from a large pool of properly submitted electronic registrations. Each fiscal year, the United States federal government sets aside a certain number of new H-1B visas as a “cap” to the number of international employees that will be allowed to live and
work within the United States. Congressionally mandated cap is 65,000 H-1B visas each year (“regular cap”), while extra 20,000 are for those that hold master’s degrees or higher from a United States institution (“advance degree exemption”).

For further information on the H-1B visa lottery process, see: https://oliverzhanglaw.com/everything-you-need-to-know-about-h-1b-visas-in-2022/

On February 21st, the USCIS online account creation process begins. This means that all potential H-1B applicants will be able to go online and create a USCIS account to prepare for H-1B application registration on March 1st. In 2020, USCIS for the first time made the H-1B approval procedures more reasonable by implementing an Electronic-Registration process that only asks for the worker beneficiary’s basic information. Unlike previous years, where H1B petitioners had to file their entire petition before hearing back on whether the application is selected in the lottery, this new online registration process is much easier and saves applicants time and money. Petitioners are required to register online which includes a $10 fee for each beneficiary. If you are selected as a lottery pick, you will
then move on to submitting your actual H1-B petition. Here is a timeline of important dates that you should be on the lookout for:

We understand that preparing for H-1B applications can be stressful. That is why Oliver-Zhang Law is here for you. Our H-1B lawyers are experienced and ready to assist you with the best service throughout your H-1B application process. Please contact us today at [email protected], or 202-643-1110 for a FREE immigration attorney consultation. We are looking forward to assisting you.

Policy Update: Biden Administration Expands STEM Field for Optional Practical Training Program for International College Students

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By Jessabelle M. Koppelman, Esq. & Julie Oliver-Zhang, Esq.


We have an exciting immigration policy update for international college students! On January 21, 2022 the Biden Administration announced that the U.S. Department of Homeland Security expanded the list of degrees included in the STEM (science, technology, engineering, and mathematics) Field that qualify for the Optional Practical Training (“OPT”) program. This extension is advantageous for F-1 STEM students interested in obtaining an H1b visa.


OPT is a temporary employment program that is related to an F-1 student’s area of study. Eligible students may apply to receive up to 12 months of OPT employment authorization. Fortunately for those with degrees in STEM, they may extend their temporary work permits for a period of up to two years. This gives individuals more time to secure an H1b visa from a sponsoring employer. The White House stated that the additional areas of study are fundamentally new, multidisciplinary or emerging fields that are “critical in attracting talent to support U.S. economic growth and technological competitiveness.” This initiative to expand the STEM definition for F-1 students is part of the Biden Administration’s efforts to attract global talent to strengthen the U.S. economy and technological competitiveness. You can read the full statement here: https://bit.ly/3GlajXA.


The new academic areas of study added to the list of new STEM fields include:
* Bioenergy
* Forestry
* Forest Resources Production and Management
* Human-Centered Technology Design
* Cloud Computing
* Climate Science
* Earth Systems Science
* Environmental Geosciences
* Data Analytics
To read a comprehensive list of the new STEM fields see: https://bit.ly/3GaddOU.

Since this work status is only temporary, F-1 students may want to consider applying for an H1b visa during their valid OPT or CPT period. If you are curious about whether an H1b visa is the right path for you, please contact Oliver-Zhang Law at [email protected] or 202-643-1110. We provide free immigration consultations. Our H-1B lawyers strive to provide you with the best service and chance for success. We are more than happy to answer your H1b visa questions.

When Should You Start Your H-1B Visa Application in 2022 for FY 2023

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By Jessabelle M. Koppleman, Esq. & Julie T. Oliver-Zhang, Esq.

Common questions about the H1b visa process are: “When should I apply?” and “How long does the H-1B visa process take?” Each fiscal year, USCIS sets aside 85,000 new H1b visa availability in October. Although these visas are not effective until the fall, the application process begins much earlier. If you plan on filing an H1b petition in 2022 (FY 2023), you should be aware of the following timeline: 

FY 2023 H-1B Electronic Registration Process: Petitioners must first register online using the USCIS Electronic Registration Process. In this first step, employers seeking to employ prospective H-1B worker(s) subject to the cap must complete a registration application that requires only basic information about the prospective petitioner and worker(s). You can begin creating an H-1B registrant account on February 21, 2022 at noon Eastern Time. The registration period officially opens in March for a minimum of 14 calendar days. This year, the registration period opens on March 1, 2022 and closes on March 18, 2022 at noon Eastern Time. 

Lottery Selection: USCIS will then conduct a random selection among the properly submitted electronic registrations. Generally, USCIS will notify selected registrants by March 31st. If selected, this means that you were randomly chosen in the “lottery” draw and are invited to submit your H1b petition. USCIS generally conducts two lottery draws and may include additional draws as needed. For Fiscal Year 2022, USCIS received 308,613 registrations and initially selected 87,500 registrants. However, only 59,783 H1b applications were approved by USCIS, or 68%. The 32% of H-1B applications that were rejected as deficient freed up H1b visa availability for a second round.   In July of 2021, USCIS conducted a second draw and selected 27,717 registrants. 

For further explanation of the H-1B visa lottery see:  https://oliverzhanglaw.com/everything-you-need-to-know-about-h-1b-visas-in-2022/  

Petition: Once selected in the lottery, you may file your H1b visa petition in April. The initial filing window for a cap-subject H-1B is normally April 1st to June 30th (a 90 day filing period). USCIS may set additional filing periods when they decide to conduct additional selections.

Approval Time of the H-1B Petition: Typically, USCIS will process a petition within 4-6 months. Alternatively, Premium Processing is available for H-1B petitions at an additional charge of $2,500. Premium Processing provides expedited processing of the petition within 15 calendar days. Please note, Premium Processing does not guarantee approval of a petition. 

Effective Date: Finally, if USCIS approves the H1b visa petition and change of status request, the beneficiary-worker may start employment, at the earliest, on October 1st. 

Preparing your H1b visa petition can be complex, that’s why Oliver-Zhang Law is here for you every step of the way. We have years of experience and proven track record of successfully filing H1b visa applications and we are committed to giving you the best chance of success. 


Contact one of our dedicated H1b lawyers today at [email protected], or 202-643-1110 to inquire about our H1b visa services. Oliver-Zhang Law provides free immigration consultations. We service employers and individuals in the Virginia, Maryland, District of Columbia, and Washington state areas, as well as nationwide.

U.S. Supreme Court Justices 2015

Gay Marriage Legal In America – Has LGBT Equality in Same-sex Immigration been Achieved through Obergefell v. Hodges?

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By Julie Oliver-Zhang, Esq., Amanda Utterback, Esq., and April Siruno

On June 26, 2015, the Supreme Court of the United States issued its opinion in Obergefell v. Hodges, and, in one ruling, made the LGBT right to marry the law of the land. All states must now issue marriage certificates to all American citizens seeking a life-time union, regardless of their sexual orientation. It is a landmark victory for the LGBT community and its allies that has been hard fought for decades. The legal history of same-sex marriage equality has been a long and rocky road, with inconsistent results in appellate courts from state to state.

Many commentators are glossing over just how close the LGBT community came to losing this war. After the pride parades and the celebrations that rang around the nation have simmered down, let’s not forget that the Supreme Court ruled 5 to 4 in favor of equal rights in gay marriage. 5 to 4 is by no means a landslide.

While many same-sex marriage advocates may feel the sense of emptiness that one does on the last line of a great novel, this decision merely leads to another chapter in the struggle for LGBT equality. Slavery was abolished in 1865, but Jim Crow laws lasted until 1965 and beyond. Women were allowed to vote in 1920, and yet, in 2015, only 20% of the United States Congress is female.

There is still much work to be done.

While our children may grow up in an America where same-sex marriage is matter of law, we still must confront frequent discrimination in the administration of law. Case in point, just three days after the Obergefell decision, the Attorney General of Texas, Ken Paxton, declared that if a county clerk or a public official has “religious objections” to issuing a marriage license to same-sex couples, they are entitled to deny such issuance.

The frightening fact is that people like Paxton are in positions of power.  They are the decision-makers, or the legal authority, in deciding whether to grant a government benefit, a job, or an adopted baby to gays, lesbians, bisexuals, and transgendered people.

In immigration cases, for example, results for same-sex couples may differ from similarly-situated heterosexual couples depending on variations in personal and social values. Typically, the evidence of a good faith marriage, required in every marriage green card application, includes a couples’ illustrious dating history, or big weddings filled with familial love and acceptance. Where many gays and lesbians are still closeted because they fear rejection, discrimination, or even violence, how are same-sex couples supposed to produce comparable evidence of a good faith marriage? The reality is that the societal standards applied for assessing what a “real marriage” looks like remains skewed by traditional assumptions.

Another example involves those LBGT individuals in long-term relationships who are residing in this country illegally. Had the laws been different, they could have married their U.S. citizen partners and received a green card many years ago like any heterosexual couple. Although they are now are able to marry nationwide, immigration laws still present significant obstacles that would require the gay alien spouse threatened with removal from this country to submit an I-601 or I-601A waiver. Essentially, in order to cure their inadmissibility and ineligibility for a green card, this waiver must overcome the high bar that their U.S. citizen spouse would experience “extreme hardship” if the couple were forced to separate.

In terms of immigration, there are only 20 countries that recognize same-sex marriage. LGBT immigrants come to the United States to avail themselves to the protection of our civil liberties. Yet, for those who are filing for a same-sex green card, many are nervous about being judged based upon their sexual identity, rather than the strength of their spousal relationship. As such, can we really say that, as a nation, we truly have reached immigration equality?

To combat these specialized issues, same-sex immigration attorneys should focus on obtaining the highest-level of evidence and proof necessary to help the LGBT community truly achieve equal and fair results in their applications for green cards, asylum, visas, and other immigration benefits. While Obergefell is a historical case in the right direction, we understand the heavy burden in same-sex immigration. We assume that all things are not equal, just yet.

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Same-Sex Marriage, New Laws, and Homophobia: Idaho, Arkansas, and Michael Sam

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Image via Flickr gomattolson/CC-by-nc-sa

Image via Flickr gomattolson/CC-by-nc-sa

By Julie Oliver-Zhang, Esq.

Is American law ready to be homophobia free? We see the indicators of social mores in the laws of a nation and its popular culture.

The United District Court for the District of Idaho held on May 13, 2014 that the ban on same-sex marriage in Idaho is unconstitutional. As the newest addition to a series of judicial decisions overturning state laws that ban gay marriages, the Idaho ruling began with a vindicated quote from Justice Blackmun, who dissented in Bower v. Hardwick that outlawed sodomy in Texas in 1986:

It is precisely because the issue raised by this case touches the heart of what makes individuals what they are that we should be especially sensitive to the rights of those whose choices upset the majority.

— The Honorable Harry Blackmun

Idaho Federal Magistrate Judge Candy Wagahoff Dale urged:

The Plaintiffs are entitled to extraordinary remedies because of their extraordinary injuries. Idaho’s Marriage Laws withhold from them a profound and personal choice, one that most can take for granted. By doing so, Idaho’s Marriage Laws deny same-sex couples the economic, practical, emotional, and spiritual benefits of marriage, relegating each couple to a stigmatized, second-class status. Plaintiffs suffer these injuries not because they are unqualified to marry, start a family, or grow old together, but because of who they are and whom they love.

Gay rights activists are buzzing as this is the second court decision in the month of May to strike down a state’s constitutional amendment restricting legal marriage to a man and a woman. On May 9, 2014, the Circuit Court Judge of Pulaski County, Arkansas eloquently compared the ban on same-sex marriages to the once-outlawed interracial marriages in the 1960’ and ordered the revocation of the state’s same-sex marriage ban:

The difference between opposite-sex and same-sex families is within the privacy of their homes. . . . It has been over forty years since Mildred Loving was given the right to marry the person of her choice. The hatred and fears have long since vanished and she and her husband lived full lives together; so it will be for the same-sex couples. It is time to let that beacon of freedom shine brighter on all our brothers and sisters. We will be stronger for it.

The opponents call these judges “judicial activists”, a derogatory term in the legal profession to denounce judges who ignore the democratic, legislative process and make laws of their own despite the mandated votes of the majority.

The celebration seemed short-lived in Arkansas, as counties have all stopped issuing marriage license to gay couples after speaking with county attorneys representing the position that the ruling did not address a separate state law that prohibits county clerks from issuing marriage licenses to same-sex couples.

In terms of LGBT immigration, this threw cold water on the same-sex couples in the “bible-belt” vicinity who watched 450 gay couples receive permission to marry in the last week. These same-sex couples who intended to apply for legal green card status through family immigration thought that they too can apply for a valid marriage license in Arkansas and become legally married. Now, much like a repeat of what occurred in Utah earlier this year, where nearly a thousand marriage licenses were granted before county clerks were barred from continuing to do so, the legal status of gay marriages in Arkansas is in limbo.

However, as United States Attorney General Eric Holder had announced earlier in the year, the federal government firmly supports the equal rights of LGBT families. It is most likely that Attorney General Holder will direct the Department of Homeland Security and the USCIS to recognize those same-sex couples who were validly married in Arkansas and issue immigration benefits accordingly.

Also in the news is Michael Sam, the first openly gay player drafted to the NFL, who kissed his boyfriend on national TV. The NFL is arguably the most machismo institution in American sports; drafting an openly gay player is progress that cannot be understated. Even so, following the broadcast, former Super Bowl champion Derrick Ward tweeted: “Man U got little kids lookin at the draft. I can’t believe ESPN even allowed that to happen.” These are some signs of our popular culture that highlight the rejection of the LGBT community, currently embodied in the unequal state marriage laws.

What does the same-sex marriage rulings in Arkansas and Idaho have in common with Michael Sam’s kiss?  The judges’ persuasions in law and those who believe the televised kiss is a step in the right direction in our popular culture are appealing to the sensibilities of the American public to stop averting our gazes from gay and lesbian relationships, and to give their love equal validation and standing. The conservative backlash in law and popular culture from the vestiges of discrimination is resound, though it certainly will find reconciliation with time as with any outdated prejudices. The judges are not simply attempting to deal with hard letters of the law, but speaking directly to the heart of the American public’s way of thinking about gays and lesbians as simply people, rather than a class of persons who somehow deserve to be bullied and shamed by the community. We will know that we have achieved equality and become a more humane society when Michael Sam’s kiss is no more than a sweet moment of celebration with family, and the Supreme Court holds consistently with Windsor in revoking the state bans against same-sex marriages as unconstitutional.

Eighteen jurisdictions, including 17 states and the District of Columbia have currently legalized same-sex marriage: Six states have legalized same-sex marriage through court decisions (California, Connecticut, Iowa, Massachusetts, New Jersey, and New Mexico); eight through legislation (Delaware, Hawaii, Illinois, Minnesota, New Hampshire, New York, Rhode Island, Vermont, and the District of Columbia); and three have legalized same-sex marriage by popular vote (Maine, Maryland, and Washington).

Nine states with court decisions revoking same-sex marriage bans based on unconstitutionality are pending review of the United States Supreme Court, including: Utah, Virginia, Texas, Oklahoma, Kentucky, Arkansas, Idaho, Michigan, and Ohio.

This brings a total of 27 jurisdictions that have shown legal support for same-sex marriage, over half of the United States.

 

Super Lawyers Names Julie Oliver-Zhang as Top Attorney and Rising Star in Washington Post Magazine

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FOR IMMEDIATE RELEASE

June 12, 2014
[email protected]
202-656-0367

Super Lawyers Names Julie Oliver-Zhang as Top Attorney and Rising Star in Washington Post Magazine

WASHINGTON – Julie Oliver-Zhang has been named by Super Lawyers in the Washington Post Magazine as one of the 2014 Top Attorneys and Rising Stars. Ms. Oliver-Zhang was recognized by peers for excellence in the legal community, and impressive records of professional achievements and ethical standards. Rising Stars are among the finest attorneys who are either 40 or younger, or in practice for 10 years or less.

Ms. Oliver-Zhang was the only Chinese-American partner to receive the coveted 2014 Rising Star, Top Attorney award with practice areas in immigration, personal injury, and medical malpractice. Less than 2.5 percent of attorneys in the Washington D.C. Metro area receive the Rising Star award, with Ms. Oliver-Zhang as one of only four others recognized under immigration law.

“What sets her apart and sets her above is her determination. I feel deeply sorry for any obstacle that gets in the way of this irresistible force. As my protégée, I am very happy that I will never have to litigate against her.”

– Ellen Sue Shapiro, former Senior Litigation Counsel of the Justice Department, Civil Division

“I often marvel at her kind, empathetic approach to addressing every client’s needs. Her talents led her to resolve landmark cases against the biggest drug companies in America.”

– Justin D. Gillenwater, Immigration Attorney and former Member of the Board of Director for OCA-Asian Pacific American Advocates Greater Houston

As Founder and Managing Partner of Oliver-Zhang Law, Ms. Oliver-Zhang provides exceptional legal services from personal injury to same-sex marriage immigration cases, which have seen growing demand. Ms. Oliver-Zhang has successfully represented clients in pharmaceutical product liability, personal injury, family immigration and same-sex marriage green cards, asylum, Violence Against Women Act (VAWA), child custody, domestic violence cases, and Foreign Corrupt Practices Act (FCPA). As a native Mandarin-Chinese speaker, she has a special interest in representing those without legal access due to language barriers.

Ms. Oliver-Zhang commented: “I am deeply honored to receive these awards along with such a stellar group of leaders in the legal profession. Oliver-Zhang Law is here to fight for our clients’ best interests, no matter how great the challenge. As a first-generation immigrant, I learned to work hard, be empathetic, cherish the relationships you build, and take every opportunity to succeed. Our practice is centered on dedication to client care, communication, and service; we are fierce about doing everything in our power to accomplish our clients’ goals.”

Thompson Reuters produces the Super Lawyers rating service of outstanding lawyers in over 70 practice areas who have attained a high degree of peer recognition and professional achievement. Super Lawyers serves as a resource and method for consumers when researching legal representation.

Oliver-Zhang Law was founded in 2013 and built upon the drive to remedy injustice and help those in need. Practice areas include personal injury, immigration, LGBT immigration, medical malpractice, FCPA, and Chinese document review. Please visit www.oliverzhanglaw.com for more information.

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