Thousands of Employers Prepare to Play the H-1B Visa Lottery

A company does not have to win the lottery for its business to succeed, however, it may need to win the H-1B visa lottery to be able to hire specialized and highly skilled employees.  Employers are willing to play the lottery, which involves considerable time and expense, because there are simply not enough US workers to fill every specialty professional occupation in the U.S.  The highest demand for foreign workers are in science, technology and engineering related occupations.

U.S. Citizenship and Immigration Service (USCIS) will begin accepting new H-1B visa petitions on April 1st, 2016.  The main challenge is that there is a strict quota on new H-1B visas available each year. If a petition is filed with USCIS but not selected in that lottery, the employer has to wait at least another year before giving the lottery another go.

What is a H-1B Visa?

The H-1B visa is the most commonly used immigration solution for companies seeking to hire foreign nationals for professional specialty occupations. The basic requirement is a position requiring at least a bachelor’s degree in a filed related to a particular specialty. H-1B specialty occupations encompass a wide range of industries, including accounting, engineering, mathematics, architecture, science, teaching, management etc. Under this category, an individual can work for up to 6 years (and sometimes longer) for their sponsoring employer.

How does the lottery system work?

Because employers are in critical need of high skilled individuals to meet certain business needs, there is fierce competition over the limited number available.  There are only 85,000 H-1B visas allocated each year: 65,000 for bachelor degree candidates and 20,000 for master’s degree graduates from U.S. universities.  Based on history and experience, we anticipate the available H-1B visa numbers will be exhausted within the first week of April, as thousands more applications will likely be filed than there are visas available.

When this occurs, USCIS conducts a “lottery”, a computer-generated process, to select which H-1B petitions received will be accepted for adjudication. It makes no difference whether the sponsoring employer is a Fortune 500 company, or a start-up, USCIS will run a computer driven lottery to randomly pick which petitions will move forward to an immigration officer, and which are rejected and mailed back to the employer.

This limited supply has prompted a race to file, forcing employers to file their applications within the first week of April each year.  Last year, employers had a 51% chance of being selected in the lottery. 172,500 applications were submitted for the available 85,000 visas.

Timing considerations?

If an H-1B petition is accepted in the lottery and approved, the employee will begin working for the sponsoring company on October 1st.  This much lead-time is challenging because companies have to assess far in advance what their needs are.

This can be easier for companies that employ foreign students or graduates on F-1 student visas. If a company employs a foreign student or recent graduate, they can assess the need for H-1B sponsorship earlier because the student/graduate may already be working for them.  Many F-1 visa foreign students have work authorization known as Optional Practical Training (OPT) valid for 12 months. OPT allows students to remain in the U.S. and receive training related to their degree.  If selected in the lottery, many students are eligible to have their OPT extended until their October 1st start date, as long as the USCIS finalizes the STEM/Cap Gap rules within the next few months.

F-1 students  with STEM degrees are in an even more favorable position, as they are typically eligible for a 17 month extension of their OPT status. STEM degrees include those in the science, technology, engineering, and mathematics fields.   These students have the added benefit of being able to play the lottery another time or two, increasing their odds of being selected by the lottery.

What if my petition is not selected?

Once the H-1B cap has been reached, no new petitions may be filed until the next fiscal year – April 1, 2017 for employment beginning October 1, 2017.  This can make both hiring and planning an employment start date difficulty.  It’s a good idea to conduct a thorough review of the potential employees other immigration options, whether employment-based, family based, humanitarian based, or even the various Obama executive actions on immigration.

When should I start the process?

In light of the unforgiving timeline, employers who would like to sponsor a worker should act in February to have a H-1B application ready to file by the April 1, 2016 deadline. There are several prerequisite steps that must occur before an employer can file an H-1B petition with USCIS. These steps include registering the company with the Department of Labor, posting required notices, and obtaining Department of Labor certification of a Labor Condition Application. These prerequisite steps can take up to four weeks, so time is of the essence, and starting early will allow sufficient time to accomplish all required steps.