Each year, 85,000 new H-1B visas become available to U.S. employers seeking to sponsor foreign national workers in “specialty occupation” positions across all industries. These 85,000 new H-1B visas are available in three distinct tranches:
- 58,200 visas are available under the Regular Cap for foreign nationals who qualify for the H-1B classification by having a minimum of a U.S. or foreign Bachelor’s degree or a combination of education and experience that is equivalent to a U.S. Bachelor’s degree.
- 20,000 H-1B visas are available under the advanced degree exemption, commonly known as the Master’s Cap, for foreign nationals who have earned a Master’s (or higher) degree in the U.S.
- 6,800 visas are allocated to the H-1B1 visa category which is available to citizens of Singapore (5,400) and Chile (1,400).
Each year the demand for new H-1B visas in the first two tranches exceeds the number available. As a result, the U.S. Citizenship & Immigration Service (USCIS) allocates the new H-1B visas in these two tranches using a computer-based lottery system, selecting H-1B Cap Registrations submitted through USCIS’ online portal, myUSCIS. The last tranche of 6,800 H-1B1 visas has historically been under-utilized and remains available throughout the fiscal year. Unused visas from this tranche become available for H-1B use in the next fiscal year.
The lottery process for the Master’s Cap and Regular Cap visas is run in two steps. The first lottery selects enough H-1B registrations to satisfy the Regular Cap from a pool that includes both Regular and Master’s Cap H-1B registrations. The second lottery selects enough H-1B registrations to satisfy the Master’s Cap from H-1B registrations eligible for the Master’s Cap that were not selected in the first lottery. Because foreign nationals who have earned a U.S. Master’s degree can qualify for selection under both the Master’s and Regular Cap lotteries, they have a higher likelihood of selection in the H-1B lottery overall.
In 2022, the USCIS will accept Fiscal Year 2023 H-1B Cap Registrations between March 1st and noon on March 18th. At the end of March, USCIS will conduct the two lotteries and selected registrations will be identified in employer and attorney myUSCIS accounts. Once notified of selection, the employer has 90 days to prepare and submit an H-1B visa petition to the USCIS. If the H-1B visa petition is approved, it will become effective on October 1, 2022.
The current online registration system allows USCIS to more precisely track the number of selected H-1B registrations that result in a filed and approved H-1B visa petition. As a result, in the past two years, USCIS has been able to determine that not all available H-1B visas have been used and has run additional lotteries. In 2020, USCIS ran one additional lottery in August to meet the Fiscal Year 2021 Cap. In 2021, USCIS ran two additional lotteries in July and November respectively to meet the Fiscal Year 2022 Cap and ensure that as many of the available H-1B visas as possible are used. Of course, the number of H-1B registrations selected in these subsequent lotteries is much lower than in the initial March lottery.
Foreign national workers who are subject to the H-1B cap are those who have not previously held H-1B status or had their registration selected in the lottery. This typically includes:
- F-1 foreign students who have graduated and are employed pursuant to OPT employment authorization or who are graduating this Spring.
- J-1 foreign scholars or researchers.
- Foreign nationals in other nonimmigrant statuses that present intent or timing challenges for green card sponsorship (TN, H1B1, L-1 from countries subject to Immigrant Visa backlogs, and others).
- Foreign nationals in derivative H-4 or L-2 status with employment authorization which is tied to the continuing status of their H-1B/L-1 spouses.
- Foreign nationals who are currently living outside of the U.S.
A foreign national’s eligibility for H-1B status is not a prerequisite of registration for the H-1B lottery in March. Eligibility must be established at the time of filing the H-1B petition. As noted above, once a registration is selected in the lottery on April 1st, the sponsoring employer has 90 days to file an H-1B visa petition on behalf of the foreign national worker. Practically, this means that if an employer is sponsoring a worker in the Master’s Cap, then the worker must complete the Master’s degree (or a higher degree) on or before the date that the H-1B visa petition is filed – which, under the 90-day rule, can be as late as the end of June – in order for the H-1B petition to be approvable. If the worker will not have the Master’s (or higher) degree by the time that the H-1B petition must be filed, then they would have to be registered for an H-1B in the Regular Cap lottery based on completion of a foreign or U.S. Bachelor’s degree or its equivalent. In the case that an employer is sponsoring a foreign national worker who has not yet completed their Bachelor’s-level studies, the sponsored worker must similarly complete all degree requirements by the time of filing the H-1B petition, within 90 days of April 1st, to qualify for H-1B status under the Regular Cap.
Finally, an employer may submit only one registration for each foreign national worker – if an employer submits more than one registration for the same worker, the USCIS will reject all registrations for that worker as duplicates.
As noted above, the H-1B Cap Lottery system opens on March 1st and closes two and a half weeks later on March 18th. Now is the time to review your existing foreign national employees to see if any would be a good candidate for the H-1B visa and if your company and the employee would benefit from their having this status. Please contact your Parker Gallini attorney to discuss any questions you have about the H-1B program.