Season 1, Episode 1: The Scoop on the H-1B Cap Lottery

Bradley Harper: Sure. So an H-1B visa is what we call a non-immigrant visa, so it allows for temporary not permanent employment. The H-1B visa is available for people to employ folks in a professional or a specialty occupation. So a specialty occupation is an occupation that requires a job-related bachelor's degree or higher in order to qualify for that particular job. So generally folks can spend a maximum of six years in H-1B visa status, but that initial H-1B visa is approved for no more than three years, and then it can be renewed again again, in an increment of three years or less.

The other thing about the H-1B visa that's important to keep in mind is it's tied to a certain employer. So employers that sponsor an employee for an H-1B visa would be sure that that employee has to work for them while on that H-1B visa.

Gabe Jiran: So I guess there's a lot of questions in that process, so first of all: Is it any employer or do you have to be a certain kind of employer to get into this?

Bradley Harper: You need to be a US employer, but pretty much any industry can get into it. Certainly, some industries may lend themselves more to professional positions, or specialty occupation.

So for example, a specialty occupation could be an accountant, a budget analyst, a computer programmer, or a software developer, even an attorney would be a specialty occupation. So again, any US employer could use it. The job would just need to be a specialty occupation

Gabe Jiran: Well, I mean, all lawyers think that we're special, right? So of course we qualify. (laughter)

So, is there some sort of level of education that has you qualifying for specialty occupation or is it just the type of work?

Bradley Harper: So a bachelor's degree would be the minimum degree that you would need, but it needs to be a job-related bachelor's degree--but there are situations where you may not have a bachelor's degree, but experience can equate to a US bachelor's degree. But again, the position itself in order to qualify must require at a minimum, a job-related bachelor's degree.

Gabe Jiran: So something you said earlier kind of caught my interest, about the time that you spend in one of these H-1B visas. Do you have to re-up after a certain period of time?

Bradley Harper: So again, the initial visa could be approved for no more than three years, but you're entitled to a maximum of six years H-1B time. So let's say my first H-1B visa gets approved and it's approved for three years. When I'm within six months, if that expiration date and the first three years, my employer can then file to extend my H-1B for another three years.

Gabe Jiran: Oh, I see. And is that part of this lottery process?

Bradley Harper: Not part of the lottery process.

Gabe Jiran: Okay, good. So once you're in, you're in.

Bradley Harper: Once you're in, you're in--you don't have to go against the lottery again when you're up for an extension. You've gotten a visa number. You're just maximizing your time on that visa.

Gabe Jiran: So now we've been using this term lottery, which means there's winners and losers. So let’s start with—there must be a limited number of these visas available?

Bradley Harper: Correct. So the reason the lottery exists is because there's a statutory limit on how many H-1Bs can be given out each year. Without getting too much into the weeds, some employers can be exempt from this statutory limit.

For example, nonprofit institutions that are affiliated with a higher educational organization or some schools and universities will be exempt. However, the vast majority of US employers are going to be subject to this allotment. So each year there are 85,000 H-1B visas made available. However, 20,000 of those are set aside specifically for foreign nationals who graduated with a US master's degree or higher from a US college or institution. Then there's another 65,000 for, you know, people that wouldn't fall into that bucket, just anybody that qualifies for the H-1B.

Gabe Jiran: So. 85,000 for the entire nation every year?

Bradley Harper: 85,000 available for the entire nation.

Gabe Jiran: And does that number go up and down from year to year?

Bradley Harper: Unfortunately not.  It has not been adjusted since it rolled out. That's why we have a lottery. So this year the lottery will run from March 1st. It opens at noon Eastern time and will run for 18 days and will close on March 18th at noon Eastern time. And the lottery is, I guess, the fairest way that the government has come up with to a lot these numbers.

Gabe Jiran: I mean, it seems like that's not a lot, right?

Bradley Harper: It's not a lot, but again, there are exceptions for certain types of employers. So you have to bear in mind--there will be more H-1B visas in one year than the 85,000, and once you've gotten an H-1B visa number, when you're up for an extension, you're not going back into the lottery.

Gabe Jiran: Oh, I see. Well, Okay, well, that's maybe solace for some employers. So, you know, I think of a lottery as I go buy a ticket and then I cross my fingers. How does this thing all work?

Bradley Harper: Well, it's not too different from buying a ticket and crossing your fingers. And in this case, the cost of a ticket is $10. You won't get a physical ticket in your hand, like those scratch and win or keno tickets.

However, the way it works is the US citizenship and Immigration Service (USCIS) operates a web. For the lottery. So US employers will make an account on the website. They need one account for the whole organization. Each individual employee that they would like to sponsor will have their own registration, tied to the US employers account.

Within that window of March 1^stto March 18^th, US employers will work hopefully with immigration counsel to enter in all of their folks who they'd like to sponsor in the lottery. Then on March 18^th, the lottery will close. And on March 31^stor somewhere towards the end of March, USCIS will take all of those lottery tickets or registrations that have been put into the system, conduct a lottery and they'll then send email and paper notifications to US employers (and if they had an attorney, to their attorney to let them know these are your employees that have been selected. After that point, US employers have 90 days to prepare and file an actual H-1B petition for the employees that were selected.

Gabe Jiran: Yeah. That's interesting. I'm thinking about if I'm an employer, I mean, does this mean I only can really consider hiring a foreign national around March of each year?

Bradley Harper: Not exactly. So a foreign national that needs an H-1B visa and doesn't have one, generally, this would be a time, if you were going to put them on an H-1B visa, this is your golden window of opportunity, but that's not to say that there aren't other ways of employing foreign nationals, even on an H-1B. Again, as I mentioned, some folks will already have a visa number because they've gone through the lottery.

We can get into the weeds later, but it is possible for an employer who finds a candidate who already has an H-1B visa that's tied to another employer to, in effect, transfer the H-1B to their organization.

Gabe Jiran: And that's why we need immigration lawyers.

Bradley Harper: That's why we need immigration lawyers.

Gabe Jiran: Yeah. I mean, when you look at the numbers, it seems kind of scary. I mean, just take healthcare institutions, for example, who have usually a high percentage of their employees--doctors, for example--coming from other countries, you would kind of look at this lottery process and think, oh my goodness, how am I ever going to get the doctors I need? But it sounds like there may be other avenues that make it a little less scary?

Bradley Harper: Correct.

Gabe Jiran: That's good. Well, now, if we've gone into the lottery process, you mentioned something that they have to now fill out—a packet. Tell me just generally what that all entails.

Bradley Harper: Sure. So first it would talk about the US employer. It would bring into account their number of employees, you would need their federal tax identification number. It would talk a little bit about that employer's line of business. Then you would talk about the offered position. And again, that's why you'd need to know about the employers line of business, particularly for occupations that may not at first glance, be a specialty occupation. It may be that performing this type of job in this industry is so difficult that you could not do it without a related bachelor's degree. You talk about the position, the duties that the employee will generally perform while they're at work every day, of course, the minimum requirements, because beyond the US bachelor's degree, there are often other requirements for a job, and then you would categorize that position as a certain specialty occupational code.

So the US Department of Labor maintains a whole list of occupational categories. You'd classify certain positions as falling within a certain category. You’d then discuss the prevailing wage for the position and how much you're going to pay the employee for that position. When I say prevailing wage, the Department of Labor has determined that for certain occupations in certain areas, there's a sort of prevailing or minimum wage that must be paid for an employee that holds that job.

Gabe Jiran: Yeah. So it sounds like you can win the lottery, but you're not necessarily guaranteed to get the visa at that time. Right?

Bradley Harper: No, it's not a slam dunk. Certainly if you're not selected in the lottery, you're not going to move to that second step of filing an H-1B petition, but that is true. Yes. Employers should keep in mind just because an employee is selected in the H-1B cap lottery does not necessarily guarantee that they will be approved for an H-1B visa.

Gabe Jiran: Got it. So now I'm the employer. I've been fortunate enough to be selected in the lottery. I filled out my packet. What kind of timeframe are we talking for the approval process?

Bradley Harper: So there are two options. There's something called USCIS’s premium processing so, assuming that's available (which generally for the past couple of years, it's always been available for H-1Bs), assuming that's available, a US employer can pay an extra $2,500 directly to the US government for premium service. And what that premium service means is that within 15 calendar days of USCIS receiving that H-1B petition, they'll take action on that petition. Another thing that comes along with that premium processing service is that USCIS will communicate with you via email rather than strictly paper correspondence.

So you'll know quickly, you know, within 15 days, whether it was approved and you also know what's going on with the case quickly, because you'll get emails rather than waiting on snail mail to arrive. If employers don't want to pay that additional $2,500 for premium processing, it would fall under regular processing. That varies depending on when in the year the petition is filed, and which service center it goes to, but you can see anywhere from four months to a year sometimes for USCIS to process it. So we do encourage folks to consider premium processing. And the other thing to keep in mind is you can always upgrade to premium processing at any time after a petition is filed.

So if it doesn't make financial sense out of the gate to file for premium processing and the petition is hanging out there for too long, it can usually be upgraded.

Gabe Jiran: Wow. Only the US government would make you pay $2,500 to get emails instead of paper. You know, another question on the lottery is, if I don't get chosen or my employee doesn't get chosen, do I get a second shot at it? Is there a consolation lottery or anything like that?

Bradley Harper: So certainly if you're not registered within this upcoming window of March 1^stto March 18^th, there's not going to be, absent some unusual change that has never occurred before, an opportunity to register again. This is a one-time shot to basically buy a lottery ticket.

That being said, there have been instances where the US government will go back within the span of one fiscal year and rerun the H-1B cap lottery with the folks that were entered in this March window.

Gabe Jiran: Oh, I see. So it's. It's not like buying another ticket. They go back to the ones who have already submitted.

Bradley Harper: Correct. And if you're not selected this year, you can certainly re-enter next year. You're not barred just because you were, you know, entered the year before.

Gabe Jiran: Yeah. Well that was the other question--so if you're not selected, you're not automatically put into the pool for next year. You have to resubmit?

Bradley Harper: Correct.

Gabe Jiran: Got it.

Bradley Harper: Another thing that may be useful for US employers to keep in mind. Although the H-1B cap lottery opens March 1^stand runs to March 18^thwith the lottery being run, are the results coming out at the end of March? Because the lottery process is tied to the US government's fiscal year, even if I'm selected in the end of March, when the lottery is run, the first day that my H-1B visa could become active is October 1^st, 2022. That's because it's the start of the government's new fiscal year which would actually be fiscal year 2023.

Gabe Jiran: Wow. Yeah. Well, I was thinking what if I don't get into the lottery, but I find this great candidate, you know, say in August? What do I do? Do I have to wait until next year?

Bradley Harper: Well, that's the thing. So you should certainly contact immigration counsel because sometimes there are other ways around. First does that employee already have an existing H-1B visa that I could transfer over to my organization? That would be ideal, because then the lottery won't even matter. Let's say they don't. Is it a student who's finishing up their (or has recently finished up their) US master’s degree or US bachelor’s degree at a US institution?  It's possible that they qualify for something called optional practical training, or depending on the degree, stem optional practical training, which allows them to work in the US for a period of time following the completion of their degree at US institution, and you may be able to employ them under optional practical training until next year's lottery.

Gabe Jiran: I see. So that sort of like a temporary fix until you can get into the more permanent H-1B process?

Bradley Harper: Correct.

Gabe Jiran: I understand. Another question that, you know, I'm just a novice at this stuff, but you said you can spend six years in an H-1B status. What happens after those six years?

Bradley Harper: Certainly. So once employers are reaching, you know that second period of three years, it's really time to start thinking about the green card, because as I mentioned at the beginning of our episode, the H-1B is a non-immigrant or temporary visa. You can't stay on it forever. So employers should think about sponsoring employees for a green card, which would allow for permanent or indefinite employment, because that process does take some time.

As we discussed the US government is not known for speed when it comes to processing these things. Employers who are in that second three year period of the H-1B really should start thinking about, do I want to sponsor this employee for a green card?

Gabe Jiran: All right. So here we are in February. March is right around the corner, believe it or not. What should employers be doing now?

Bradley Harper: They should contact experienced immigration counsel as soon as possible, because there's a lot to be done in these three weeks. While we cannot actually buy that lottery ticket or register the employee in the lottery until March 1^st, we should first evaluate--if they were selected, is the position that I'm offering to them truly going to qualify as a specialty occupation? Again, just winning the lottery ticket will be no good because it's not a guarantee of an H-1B and if it's not a specialty occupation, it won't support an H-1B.

They should also think about that prevailing wage I discussed. Even if this is a specialty occupation, as a US employer, am I willing and able to pay the salary that will support that prevailing wage for my particular area, where the employee is going to work?

And they should also think about the employee themselves. Another part of the H-1B petition that I have to prepare and file discusses the actual foreign national employee who is going to receive the H-1B visa. They, among other things, need to be in a valid US immigration status at the time that the H-1B visa is granted, if they're here in the US. They don't need to have anything else on their record, immigration-wise or criminal-wise, that would prevent them from getting an H-1B visa. And again, those are all problems to explore before entering the lottery, because, again, just because you're selected in the lottery doesn't guarantee that that H-1B visa is going to be approved.

Gabe Jiran: Yeah. So I'm assuming as an immigration lawyer, this is a busy time of year for you?

Bradley Harper: It’s a busy time of year. It's kind of like tax season for an accountant.

Gabe Jiran: Well, just tell me a little bit, I mean, obviously, without getting into specific clients, what kinds of things are you doing right now to get prepared?

Bradley Harper: So some clients, again, as I mentioned, it's not always a straightforward analysis as to whether it's a specialty occupation. So we have some clients who, while the job itself on its face may not seem like something that requires a bachelor's degree, we have some clients that are in high tech industries where there's no room for error, and the particular work that employees are doing is so specialized that it really requires a bachelor's degree and understanding of that industry. So, certainly right now, we are working with those employers to develop a strategy for how we're going to shoe horn their position in as a specialty occupation.

The other thing is, when entering the lottery, employers have to again, provide that federal tax ID number. We are working with some employers to make sure that the address and name of their company tied to their federal tax ID number still matches up. A lot of employers during the year may change a business address or change their company name and not alert the government. Those things need to be straightened out before we enter the lottery, or it's not going to go well.

Gabe Jiran: Yeah, so that merits some pre-planning to make sure everything is lined up so that if you get into that lottery and you get selected, or your employee gets selected that you have the greatest chance of success.

Bradley Harper: Correct.

Gabe Jiran: All right. Well, I think that really covers the topic. Any closing remarks you would give to our audience?

Bradley Harper: Act NOW. Those 18 days will disappear quickly. And as I mentioned before, while the lottery these past two years has been conducted more than once, if you do not make it in during this 18-day period from March 1^stto March 18^th, there's not going to be new lottery tickets for sale this year.

Gabe Jiran: All right. Excellent advice. So I think we're going to conclude now and I just want to thank our audience for listening, and we hope that you'll all join us for our next episode, which will be coming very soon. Thank you for joining us on this episode of “From Lawyer to Employer: A Shipman Podcast.”

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