Winning a lottery is supposed to lead to financial freedom, but unlike the picture suggests, the prize isn’t cash when it comes to the H-1B lottery.  For students, the prize is finally ditching that 4-year ramen diet in hopes of starting at the bottom and grinding their way to the top.  For the skilled immigrants abroad, it’s like applying to Hogwarts, but instead of magic wands, they’re armed with degrees, pay stubs, and an immigration lawyer on speed dial.  It’s America officially saying to non-citizens, “We love your talent, but please fight 300,000 others in a paperwork battle royale for 85,000 spots!” 

What’s All the Fuss About? The H-1B Lottery

The H-1B has had an annual visa quota since 1990 when the category was first created.[1]  Known as the “CAP”, the current annual limit is 65,000 visas available for those with a bachelor’s degree; and 20,000 visas for U.S. master’s or doctorate degree holders by foreign professionals who have graduated from a U.S. university.[2]

When the demand for IT services started to skyrocket, 2007 saw the first time there were more H-1B filings than the combined total of 85,000 available visas within days cases were permitted to be filed.  By the end of the first 5 days of the filing period, the CAP was reached for fiscal year 2008.[3]

Ever since, the jockeying for H-1B visas has not stopped.

Until 2020, the system was a mad rush to prepare H-1B cases, in full, and have them reach USCIS offices on April 1[4] – the first day H-1B cases are permitted to be filed, which is six months prior to the start of the government’s fiscal year on October 1 – for the inevitable CAP being reached within days of the filing period opening up.

When it occurred, H-1B petitions would undergo a random computer-generated process to select the filings that would be processed … hence the “lottery.”  Petitions not selected were returned to sender.

Though the random computer-generated “lottery” remains, USCIS now uses a registration process for beneficiaries to be entered into the lottery for its limited number of H-1B visas.  Each year USCIS announces a registration period, a timeframe prior to April 1, during which U.S. employers must pay a fee to submit their basic information and limited information about the foreigner for whom they intend to file an H-1B petition.  Thus, simplifying and eliminating the old paper-heavy, burdensome frenzy and making it more cost efficient for companies.

Arguably, the popularity of this visa lies in the fact that it is the easiest and only mechanism U.S. employers have to hire foreign workers without strings attached such as a nationality requirement for TNs, work abroad prerequisites for L-1s, or a lengthy labor market test for some employment-based categories. 

What Is This H-1B Visa?

The H-1B is a non-immigrant visa that allows U.S. employers to hire foreign nationals in speciality occupations.

Of course, the phrase “speciality occupation” has a specific definition, which means that the theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor is required along with the attainment of a bachelor’s degree or higher in a directly related specific specialty for entry into the occupation in the United States.[5]

If you’re having trouble wrapping your head around that mouthful of a legal definition – which believe it or not is the truncated version – think IT whizzes, engineers, doctors, and other highly skilled folks whose resumes could outlift a CrossFitter.  Ok, resumes that scream “newbie” qualify too!

U.S. companies often use the H-1B to hire back international students on an internship as well as talent abroad with skills that cannot be found in the United States.

H-1B Eligibility Requirements

To qualify for an H-1B, the position, the U.S. company, and the foreign national-applicant must each meet certain criteria for the case to be successful.

H-1B Positions – Breaking Down “Specialty Occupation”

The role the U.S. company is seeking to fill must be a speciality occupation position that requires a U.S. bachelor’s degree or higher or its equivalent in a directly related specific speciality, which is the norm:

• For entering the particular occupation; or
• For performing the job duties in positions among similar organizations in the employer’s industry in the U.S.; or
• The employer requires to perform the job duties of the position.
• Alternatively, the specific duties of the position offered are so specialized or complex or unique that the knowledge required to perform them is normally associated with having a bachelor’s degree or higher in a directly related specific specialty.[6]

H-1B Applicants – The Foreign National as the Beneficiary

Foreign national applicants, the beneficiary of the petition being filed on their behalf, must be qualified to perform the services in the speciality occupation by holding one of the following:

• A U.S. bachelor’s degree or higher required by the specialty occupation; or
• A foreign degree that is deemed to be the equivalent to a U.S. bachelor’s degree or higher; or
• An unrestricted license, registration or certification, if required, that allows them to fully and immediately practice the specialty occupation where they will work.
• Alternatively, they possess education, training, and/or experience that is equivalent to the completion of a U.S. bachelor’s degree or higher in the specialty occupation and has been recognized accordingly by previously holding positions directly related to the specialty.[7]

H-1B Companies – The U.S. Petitioner/Sponsor

The U.S. company, petitioner or sponsor, must submit with their petition the following:

• Evidence the beneficiary qualifies to perform the services in the specialty occupation; and
• A certified labor condition application from the Secretary of Labor; and
• A statement that they will comply with the terms of the labor condition application.[8]

Applying for an H-1B

In light of the H-1B company’s requirements, the first step in applying for an H-1B is obtaining a certified labor condition application.  Once received, together with the petition, they are filed with USCIS in the United States.

However, there are strict requirements around when the filings can be made with USCIS.

An H-1B petition cannot be filed more than 6 months before the start date, and the start date is October 1^st, the beginning of the U.S. government’s fiscal year.  Therefore, April 1^st is the earliest an H-1B petition can be filed for beneficiaries counted against the CAP for the first time.

H-1B status is automatically activated on October 1^st for those already in the United States in another non-immigrant status and for whom change of status was requested on the H-1B petition.

Otherwise, H-1B status is activated by entering the U.S. in H-1B status after applying for and obtaining the visa abroad, or, if visa exempt like Canadians, going straight to the border with the H-1B approval notice to seek admission accordingly.

Length of Stay

With a few exceptions, the maximum amount of time someone can be in H-1B status is a total of 6 years.  Initial petitions may be approved for 3 years, if requested, and a renewal of up to 3 more years may be granted.

H-1B and The Green Card

Though it is defined as a classification that authorizes the performance of work on a temporary basis, the H-1B is generally a stepping stone to retain foreign talent permanently thereby allowing foreign nationals to have the intent to seek permanent residency in the U.S.

U.S. companies may sponsor foreign nationals for a green card using any of the first three employment-based categories, if the beneficiary qualifies.

What About My Family Members?

Spouses and children may apply for the dependent H-4 status.  Like with most other non-immigrant visas, they may study in the U.S., children being able to attend any school whether public or private.

As for spouses in need of work authorization, however, the general rule is that it is not permitted.  However, there are exceptions to the rule: After a labor certification has been pending for 1-year; or an approved I-140 has been approved on behalf of the primary H-1B beneficiary, the spouse may file for work authorization.

The H-1B visa is like the “American Idol” of immigration — except instead of singing, you prove your worth with degrees, employer sponsorship, and the stamina to survive USCIS paperwork without crying (much). Thousands audition, few get the golden ticket, and no one gets a record deal.  And if you’re in the IT space, then it’s just the right to legally code in a cubicle near a ping-pong table, the reality show where your prize is… living in the Bay Area on a budget! Contact us about the next audition.

Disclaimer: The information provided in this blog post is for general informational purposes only and does not constitute legal advice.  While efforts are made to ensure the content is accurate and up to date at the time of publication, laws and regulations may change, and the information may no longer be current.  You should consult a qualified legal professional for advice specific to your situation.

[1] https://www.americanimmigrationcouncil.org/research/h1b-visa-program-fact-sheet#:~:text=Since%20the%20category%20was%20created,higher%20learning%20(Figure%201).

[2] Id.

[3] Id.

[4] Or the first business day in April

[5] 8 C.F.R. § 214.2(h)(4)(ii)

[6] 8 C.F.R. § 214.2(h)(4)(iii)(C)

[7] 8 C.F.R. § 214.2(h)(4)(iii)(C)

[8] 8 C.F.R. § 214.2(h)(4)(iii)(B)