H1B Visa Lottery: how does it work?

Each year, non-US foreign nationals applying for an H1B visa to work in the USA take their chances with the H1B visa lottery.

Since H1B applications are accepted only once a year during the application window, it is important that all steps are followed correctly to avoid issues.

In this article, we look specifically at the H-1B visa lottery and its role in the wider visa application process.

H1B application process

The lottery is one of many stages in the H1B application process.

First, applicants must have a sponsor lined up to support their application. The sponsor submits a registration for the worker during the annual registration window during April. The registration requires only brief details relating to the applicant.

How many H1B visas are issued each year?

The maximum number of H1B visas that can be made available on an annual basis is 65,000 under the regular cap, with an additional 20,000 visas available to applicants holding a Masters degree.

6,800 out of the regular quota are also reserved for citizens of Chile and Singapore as part of a specific Free Trade Agreement.

How does the H-1B visa lottery work?

The number of annual registrations made during the registration window typically far exceeds the annual cap level and the number of available visas.

The window remains open to registrations for the full stated period, even after the cap has been exceeded. Selection is not on a first-come, first-served basis.

Once the window is closed, USCIS carries out the H-1B visa lottery to identify which registrations will be invited to the next stage. This is a random selection process of registrations received during the window.

Lottery selections are processed at random and are not determined by when during the window the registration was submitted nor is there any assessment of the merits of the registration.

Once the 65,000 H1B cap has been filled, 20,000 petitions will be randomly selected from the Masters Cap petitions. Any of the 20,000 that are not selected will go back into the regular cap.

Successful registrations are then notified and invited to submit their full H-1B petition within the specified deadline, which is usually 90 days from notification.

It is important to remember that selection in the visa lottery does not guarantee the visa will be granted. The petition will be assessed against the visa requirements and eligibility criteria.

What happens to unsuccessful registrations?

Unsuccessful H-1B applicants must wait until the next fiscal year before re-applying for an H-1B visa.

H1B visa lottery chances of selection

In the 2019–2020 season, applicants had a 32% chance of being selected in the visa lottery.

Given the lottery takes place only once a year, applicants and their potential sponsors will naturally want to ensure their prospects of success are maximized.

You can take steps to avoid issues with your H-1B registration, by ensuring you are following the process requirements.

  • Ensure that all forms are completed correctly, all requested information and documents have been provided and the correct fees have been paid.
  • Don’t send in your H1B petition before the opening date of the application window in April.
  • Do submit the petition as soon as the window opens.
  • Ensure that you have the required degree or specialist experience to meet the requirements for the job.
  • Ensure that the job itself is eligible for an H1B visa.
  • Apply for each job offer you have with different employers.
  • Don’t send multiple applications for one position or one employer. If an employer makes multiple or duplicated H1B petitions for a single employee, they will be rejected and no refund offered.
  • Don’t enter a petition for a job that will start more than 6 months after the visa start date.

While these will not increase your chances of being selected, they can ensure you are avoiding any potential delays or problems with being included in the lottery selection process.

If you are successful in the H-1B visa lottery

If selected in the H-B1 visa lottery, you will be notified and asked to file your H-1B cap petition

Your employer must first submit a Labour Condition Application form ETA-9035 (LCA) to the United States Department of Labour for certification.

The LCA should state the employer’s agreement to:

  • pay you a wage that is not less than the wage paid to similarly qualified workers, or if more than the wage of similarly qualified workers, to pay you a wage that is the generally accepted wage for such a position locally
  • provide you with working conditions that will not have a negative effect on other similarly employed workers, and that there is no current strike or lockout taking place when the Labour Condition Application is filed

Once the certification has been granted, the employer must submit a Non-immigrant Worker Petition form I-129 along with the certified LCA to the relevant USCIS Service Centre.

On approval of the Non-immigrant Worker Petition, you may apply for your visa through the Online Non-immigrant Visa Application system form DS-160. You will be expected to attend an interview at your local US Embassy or Consulate.

H1B visa requirements

The H1B visa is a temporary non-immigrant worker visa that makes it possible for US businesses and organisations to employ graduate level or otherwise specialist foreign nationals in speciality occupations.

The definition of ‘speciality occupations’ in this context are those occupations which require a practical and theoretical application of highly specialised knowledge, including fields such as engineering, computing or medicine.

Eligibility for an H1B visa relies on the applicant possessing an offer of employment in a suitable role from a US employer and the fulfilment of at least one of the following:

  • A US bachelor’s or higher degree in the relevant speciality occupation from an accredited educational institution.
  • An equivalent foreign degree in the speciality occupation.
  • An unrestricted state licence, registration or certification which allows you to carry out and be employed in the speciality occupation in the US state where the employment is based.
  • Education, training or experience in the speciality that is equivalent to a degree and that you are recognised as having a suitable level of expertise in the speciality.

There are also H1B eligibility requirements for the job that you wish to be employed in. At least one of the following must apply:

  • The job’s minimum entry requirement is a bachelor’s degree or higher degree, or an equivalent qualification and experience.
  • The requirement of a degree for this job must be the norm for the related industry, or the job must be so complicated or specialised that it can only be carried out by an individual who has a degree.
  • The employer requires a degree or equivalent for anyone employed for the job.
  • The duties involved in the job are so complex and specialised that the knowledge level generally associated with a person who holds a bachelor’s or higher degree is required.

Alternatives to the H1B visa

If your H1B petition is not successful, take advice on alternative visas such as the L1 visa for intracompany transferee roles or the O1 visa for individuals with extraordinary ability or achievement in the sciences, arts, education, athletics or business. Your options will depend on your circumstances.

H1B visa lottery – NNU can help!

NNU’s specialist US immigration attorneys can assist you in ensuring that your H1B visa petition is completed correctly, the required documentation is compiled, and that the application process is managed effectively. As specialist legal advisers, we can also help you to consider alternative visa routes, given the highly competitive nature of the H1B Visa Lottery.

If you have a question about the H1B visa, or any other US immigration-related matter, please contact us for advice.

This article does not constitute direct legal advice and is for informational purposes only.