Under the H-1B program, a US employer can sponsor a foreign national for temporary employment. To qualify, it must be shown that the candidate will perform services in a “specialty occupation,” which is generally defined as a position that requires at least a bachelor’s degree or the equivalent.
The H-1B Cap & Annual Lottery
Since the category was created in 1990, Congress has limited the number of H-1Bs available each year. The current cap is 65,000 (regular cap). There are also 20,000 additional H-1Bs set aside for individuals that possess a master’s degree or higher from a U.S. institution of higher education (master’s cap).
Due to the cap, the demand for H-1Bs vastly outweighs the number of available visas, so USCIS conducts an annual lottery and selects a limited number of individuals that are eligible to file a petition with the agency. Registration for the H-1B lottery opens in March each year, and selection typically occurs in early April.
Although the H-1B lottery is a necessary requirement for employers seeking foreign labor under the H-1B program, there are a few exceptions. For example, individuals previously selected in the lottery are not subject to the annual cap if they wish to change employers during the validity of their H-1B status. In addition, certain employers are cap-exempt and can file H-1B petitions at any point throughout the year. These cap-exempt employers include institutions of higher education, non-profit entities related to or affiliated with institutions of higher education, non-profit research organizations, and government research organizations.
The Lottery Process
Online Registration: The first step of the H-1B lottery process is registering candidates during the annual registration period. This can be done by the employer, or an attorney authorized to act on behalf of the employer, and it involves creating a myUSCIS account, paying a $10 fee for each registration submitted, and providing limited information about the company and each foreign national registered.
Lottery Selection: Once the annual registration period closes, USCIS conducts a random lottery to determine who can file a petition. USCIS then notifies selected individuals via the employer’s myUSCIS account.
Filing an H-1B Petition: Following selection in the H-1B lottery, the petitioning employer will be given 90 days to complete and file a petition with USCIS. This petition will require extensive documentation proving that the position offered qualifies as a specialty occupation and that the foreign national possesses the necessary credentials. In addition, employers must also obtain a certified Labor Condition Application (LCA) from the US Department of Labor and submit it together with the H-1B petition. This LCA will require the employer to make several attestations related to wages paid, working conditions, etc.
Post Approval: Following H-1B approval, the employee must then obtain an H-1B visa from a U.S. Embassy or Consulate abroad, minus a few exceptions. In addition, the earliest possible H-1B start date for an employee selected in the lottery is October 1st of that year.
H-1B petitions may be approved for an initial period of three (3) years, and the total period of stay in H-1B status is capped at six (6) years. Extensions beyond the six-year cap are only available in limited circumstances under sections 104(c) and 106(a) of the American Competitiveness in the Twenty-First Century Act (AC21).
Spouses and unmarried children under age 21 may seek admission in H-4 status as dependents. Spouses and children may attend school, but they are not generally permitted to work. However, certain spouses become eligible to apply for work authorization once they reach a specific point in the green card process. Please contact our office for more information.