Last Updated on January 11, 2024
FY 2025 H-1B cap season is approaching, making now the perfect time to brush up on the petition process
The H-1B is one of the most popular, yet most challenging to acquire of all the visa categories. The H-1B visa is valuable for employers who need foreign talent to fill key professional roles, so demand is high for the 85,000 visas available each fiscal year. Of these new H-1B visas, 65,000 regular visas are issued and an additional 20,000 are reserved for applicants with U.S. master’s degrees.
Every year, U.S. Citizenship and Immigration Services (USCIS) receives far more H-1B cap-subject petitions than there are visas available for employees. And each year, more people file H-1B visa petitions. In fiscal year (FY) 2024, USCIS received 780,884 H-1B cap-subject petitions. Just one year before, in FY 2023, USCIS received 483,927 H-1B cap-subject petitions.
Due to the competitive nature of the H-1B application process and the strict timelines that applicants must adhere to, early preparation and a strong foundational knowledge of the H-1B lottery process is crucial for employers who want to secure work authorization for their foreign-born employees.
Additionally, working with an immigration services provider like Envoy Global, which gives you access to helpful support teams, makes the process much smoother and easier.
H-1B Lottery Fundamentals: 4 Things You Need to Know
What is the H-1B Visa?
The H-1B visa provides work authorization to foreign nationals employed in “specialty occupations”. These are roles that require at least a bachelor’s degree, or equivalent work experience in a specific field, in a specific field. There is no official “specialty occupation” list, and eligible roles range from computer science, biotechnology, and engineering to human resources, among others.
To qualify, a foreign national must be sponsored by an employer and paid the “required wage.” The required wage is whichever is higher: the “actual wage” paid to similarly employed workers, or the “prevailing wage” for the occupation as set by the U.S. Department of Labor (DOL).
The H-1B Lottery Process
Every year, USCIS randomly selects petitions through a lottery. The petition selection is conducted through the H-1B electronic registration process, which USCIS implemented in 2020.
The H-1B cap lottery opens in March, and the initial registration period lasts for 14 days. USCIS then conducts the random H-1B lottery by selecting from the completed online registrations. USCIS will first select registrations for the H-1B regular cap and then select registrations toward the master’s or advanced degree cap. USCIS will then electronically notify petitioners, the designated company representative and the immigration provider of selections. Selections typically occur prior to April 1, and selected registrations must submit completed H-1B petitions within 90 days of lottery selection. It is important to note that lottery selection does not guarantee approval of the H-1B petition, and all petitioners and their employees must demonstrate all mandatory qualifications, such as degree and salary, to be eligible for the H-1B visa. If their petition is approved by USCIS, the foreign national will obtain official H-1B status and may begin working on October 1st.
Note that certain employers, such as institutions of higher education and select nonprofit entities, are exempt from the H-1B cap process and can petition for new H-1B visas without entering the H-1B cap lottery.
Filing the LCA
Before submitting the H-1B petition for a foreign national, an employer must file a Labor Condition Application (also known as ETA Form 9035) with the U.S. Department of Labor (“DOL”), which establishes that the employer will pay the required wage for the position and employ the visa holder under fair working conditions. LCAs normally take seven days to be certified by the DOL, but during peak times, they can take longer. Given that there is also an LCA registration process, employers are urged to begin the LCA process well before mid-March.
As part of the filing process, the employer needs to notify its workforce at the particular worksite that it is sponsoring an employee for H-1B status. In addition, the employer must attest that it is not experiencing a work stoppage, strike or lockout at the employment location at the time of LCA submission.
Employers should also note that a new LCA may need to be filed based on changes to the H-1B employee’s work conditions. An H-1B amendment may also be necessary. More information is available in this post for the employment changes that require updates.
Perfecting the H-1B Petition
The following can help you maximize your chances of securing work authorization for your employee in the competitive H-1B lottery:
Be thorough. In addition to providing required employee documents that verify eligibility and legal status (if inside the U.S.), submitting a full scope of employer documents, such as client lists, tax returns and marketing collateral, can help establish your organization’s legitimacy.
Provide detailed job descriptions. List specific, detailed job duties that describe an employee’s daily activities and emphasize the importance of specific degrees and knowledge of advanced concepts. Doing so can help to avoid triggering a Request For Evidence (RFE).
Leverage technology. A centralized platform can help you streamline the paperwork process, simplify document collection and stay compliant.
Even before H-1B cap season begins, there’s much that employers and employees have to consider. For help managing the complexities of cap season and reduce stress throughout the process, contact Envoy’s experienced team for support and assistance.
Envoy is pleased to provide you with this information, which was prepared in collaboration with Corporate Immigration Partners, P.C., a U.S. law firm who provides services through the Envoy Platform (the “U.S. Law Firm”).
Content in this publication is for informational purposes only and not intended as legal advice, nor should it be relied on as such. Envoy is not a law firm, and does not provide legal advice. If you would like guidance on how this information may impact your particular situation and you are a client of the U.S. Law Firm, consult your attorney. If you are not a client of the U.S. Law Firm working with Envoy, consult another qualified professional. This website does not create an attorney-client relationship with the U.S. Law Firm.