Each year, approximately 85,000 new H-1B visas become available to US employers seeking to sponsor foreign national workers in “specialty occupation” positions across all industries. These new H-1B visas go into effect annually at the start of the federal government’s next fiscal year on October 1st, and employers are first able to file for one of these visas up to six months in advance of this effective date, on April 1st.
Only “specialty occupation” positions are eligible for H-1B sponsorship. A specialty occupation position is one that requires a minimum of a baccalaureate degree in a particular specialty field directly related to the position’s duties. Over the years, the demand for H-1B visas has vastly outstripped the supply, resulting in the establishment of a lottery system to fairly allocate the visas. Beginning with the March 2020 H-1B Cap lottery for Fiscal Year 2021 H-1Bs, employers are required to register sponsored foreign national workers in a computer-based lottery run by the US Citizenship and Immigration Services (USCIS). USCIS selects a sufficient number of these registrations to meet the 85,000 visa cap using the lottery system before beginning to accept petitions for selected registrations on April 1st.
USCIS allocates new H-1B visas in two major tranches: the Master’s Cap and the Regular Cap. 20,000 of the available H-1B visas are reserved under the Master’s Cap for foreign nationals who have earned a Master’s (or higher) degree in the US, and an additional 58,200 visas are available under the Regular Cap for foreign nationals who qualify generally for the H-1B classification by having a US or foreign Bachelor’s degree or a combination of education and experience that is equivalent to a US Bachelor’s degree or higher. USCIS reserves the remaining 6,800 visas for the treaty-based H1B1 visa category available to citizens of Singapore (5,400) and Chile (1,400). H1B1 visas have historically been under-utilized and remain available throughout the fiscal year. Unused visas reserved for H-1B1s are added back to the next year’s quota.
Foreign national workers who are subject to the H-1B cap are those who have not previously held H-1B status and who have not been counted against the H-1B cap within the past six years. This typically includes:
- Workers in F-1 student status who will be reaching the end of their OPT/STEM employment authorization in the next year or who are in the final stages of degree completion
- Workers in J-1 scholar or researcher status
- Workers 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)
- Workers who are currently outside of the U.S.
- Workers who have been employed in H-1B status with “Cap-exempt” institutions or organizations, such as universities, related or affiliated non-profit entities, nonprofit research organizations, and governmental research organizations.
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. 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 US Bachelor’s degree or its equivalent. In the rare case that an employer is sponsoring a foreign national worker who is completing 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.
The lottery process is run in two parts. The first selects enough H-1B registrations to satisfy the Regular Cap from a pool of both Regular and Master’s Cap H-1B registrations. Then, USCIS runs a second lottery including only those H-1B registrations for foreign nationals with a US-earned Master’s or higher degree who were not selected in the first lottery. Because sponsored foreign nationals who have earned a US Master’s degree can qualify for selection under both the Master’s and Regular Caps, they have a higher likelihood of selection in the H-1B lottery overall.
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. USCIS requires the following information for each electronic registration:
- The sponsoring employer’s name, address, and EIN
- The sponsoring employer’s authorized representative’s name, job title, telephone, and email
- The sponsored foreign national worker’s name, date of birth, country of birth, country of citizenship, gender, and passport number
- Confirmation of whether the employee has earned (or will earn) a US Master’s (or higher) degree
- An electronic Form G-28 for all registrations submitted by an attorney
$10 registration fee for each registered employee, paid online.
USCIS does not require that employers obtain a certified Labor Condition Application (“LCA”) with the Department of Labor prior to submitting the electronic registration.
Once the electronic registration is submitted, it cannot be amended except to delete the registration of an employee. If other changes are needed, the registration will have to be deleted and a new registration resubmitted during the designated registration period.
This year, USCIS will open H-1B lottery registration from 12PM Eastern on March 9th to 12PM Eastern on March 25th. The two lotteries will be run in the last several days of March and employers will be notified by email of selected registrations by April 1st.
Contact your Parker Gallini attorney to discuss your H-1B visa issues.