H-1B Visas and Winning the Lottery

Feb 12, 2018 | Business, Labor Law

Cap season is upon us. What is cap season exactly? It’s the time of year when employers seeking to hire foreign professionals for “specialty occupations” prepare and send their petitions to USCIS for a limited number of H-1B visas. There is currently an annual cap of 65,000 regular H-1B visas and an additional 20,000 H-1B visas for individuals with U.S. master’s or doctorate degrees.

H-1B visas are nonimmigrant (temporary) visas available for “specialty occupations.” A specialty occupation is one that requires a minimum of a bachelor’s degree, or its equivalent, in a related discipline. Positions in engineering, mathematics, and technology often qualify. Many positions in the medical field could also qualify if they require a minimum of a bachelor’s degree. Typically, H-1B visas are granted for a period of 3 years and can be extended for another 3 years. Under certain circumstances they can be extended even further. The process requires filing a Labor Condition and Application to ensure that U.S. wages are not suppressed, as well, as posting a notice advising U.S. workers of the position.

The reason there is a “season” for filing H-1B petitions is because the demand for H-1B visas far outpaces the number of visas available each year. In order to deal with the extremely high demand, USCIS has established a lottery system in which all H-1B petitions received during a one week filing period, beginning the first business day in April, are placed into a pool from which applications are randomly selected. All unselected petitions are returned. In fiscal year 2017, USCIS received over 236,000 petitions during the filing period. That amounts to just about a 36% chance of being selected for a visa.

Although you’ve literally got to win a lottery to get an H-1B visa (admittedly a lottery with far greater odds than say, the Powerball) once you’ve got one, the benefits are big for both employers and workers. The H-1B visa is a temporary visa that does not lead to lawful permanent residence for the worker, however, it is one of the few nonimmigrant visas that allows for dual intent. This means both immigrant and nonimmigrant intent. Typically, nonimmigrant visas require that the visa holder not intend to permanently stay in the U.S. Filing any applications that would lead to permanent residence are evidence of immigrant intent and therefore contrary to the purpose of a nonimmigrant visa.

Dual intent visas permit the individual to simultaneously be in the U.S. as a nonimmigrant and also pursue permanent residence in the U.S. Often, due to lengthy processing times and visa backlogs, the process for obtaining lawful permanent resident status (aka a green card) through an employer takes a long time. For example, a worker from India might wait for a green card for over a decade. An H-1B visa can help the employer fill the position while the green card process is ongoing. It also helps the foreign worker build experience while living and working in the U.S. while waiting to be able to stay permanently. An H-1B visa holder can also bring their spouse and children with them to the U.S. These benefits are enormous when one considers that these H-1B visa holders are highly qualified workers who often ultimately become U.S. citizens and will benefit the U.S. economy in the long run.