What is an H-1B?
H-1B is a nonimmigrant classification for foreign nationals working in a “specialty occupation.” Nonimmigrant classifications are used to designate those individuals who have not or will not begin a green card process. H-1B visas are valid for up to six years, with an initial validity period of up to three years and the option to extend the visa for another three. H-1B visas are job and location specific, meaning the foreign national must (1) work only for the specified U.S. employer; (2) work only at the worksite(s) listed on the petition; and (3) perform only the duties described in the petition.
To qualify as a “specialty occupation,” the position must require both a theoretical and a practical application of a body of highly specialized knowledge. In addition, the employee must have at least a bachelor’s degree where they gained the highly specialized knowledge the position requires. H-1B occupations may include fields such as architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts.
Why is there an H-1B lottery?
Congress set a numerical limit, or a “cap” on the number of H-1B visas that can be issued each fiscal year. This cap is set at 65,000 with an additional 20,000 available for those foreign nationals with at least a Master’s degree from a U.S. institution, typically called the “Master’s CAP.” These numbers were established in 2005, and there are almost always more foreign nationals applying for these visas than there are visas available. This leads to the lottery.
Photo by dylan nolte on Unsplash
How does the lottery work?
The United States Citizenship and Immigration Services (“USCIS”) conducts the lottery for the Master’s CAP first. Any individuals who are not selected for the Master’s CAP will be placed in the general lottery pool and receive a second opportunity to be selected. Once both lotteries have occurred, USCIS will notify the selected applicants, who will then be eligible to file a petition for an H-1B visa. Being selected in the CAP lottery does not guarantee that the applicant will be granted a visa.
Are there important dates I should keep in mind surrounding the lottery?
Although the specific dates for this year’s lottery have not been announced yet, the pattern is generally the same each year. In mid- to late-February, companies can begin to create their USCIS account where they will have to electronically sign the registrations. On the first business day of March, the registration period will open. In mid-March, the registration period will close. At the end of March, the lottery will happen and selected applicants will be notified. On the first business day of April, petitions can begin to be filed with USCIS.
If an insufficient number of petitions are received based on this lottery, USCIS will conduct a second lottery at some point in July. For these second round applicants, petitions can begin to be filed on the first business day of August.
Photo by Thea on Unsplash
What information do I need from my employee to register them?
The online registration portal requires information about both the foreign national and company seeking to hire that individual. Regarding the employer, the registration asks for the company’s legal name, doing business name, EIN, and mailing address. You will also need to prove information about the authorized signatory, including their full name, title, email address, and phone number. The authorized signatory is the individual who will need to create a USCIS account and electronically sign the registration. We typically see companies designate an individual in HR or in the General Counsel’s office to be the authorized signatory.
Regarding the potential employee, the registration asks for their full name, gender, date of birth, country of birth, nationality, and passport number. You will also need to indicate whether or not the individual is or will be qualified to be considered for the Master’s CAP. Individuals who have earned a Master’s degree or higher from a U.S. institution of higher education are qualified to be entered into the Master’s CAP lottery.
There is also a $10 fee that must be paid for each applicant before the registration period closes.
Who is eligible to be registered?
Any foreign national who has a job offer that meets the “specialty occupation” requirements as detailed above is eligible to be registered for the CAP lottery. The individual does not have to be in the U.S., but they can be. They also do not have to be a student, but they can be.
You can read our thoughts on the increasing number of registrations here.
If your employee is not selected in the lottery, you can find our immigration suggestions here.
Please don’t hesitate to contact Zulkie Partners if you have questions related to preparing for this year’s H-1B CAP lottery or if you’d like us to manage your company’s H-1B processes.