H1B Visa Lottery

H1B Visa Lottery – Improving your chances
Each year, non-US foreign nationals applying for an H1B visa to work in the USA take their chances with the ‘H1B Visa Lottery’. According to latest figures, H1B applicants last year had a 38% chance of their application being granted.The H1B visa cap limits the maximum number of H1B visas that will be made available on an annual basis and each year, there are far more applications for H1B visas than there are available visas.

The regular cap for 2019 was 65,000 with an additional 20,000 visas made available to applicants holding a Masters degree.

The application window opens at the beginning of April each and is generally oversubscribed within days. The window is closed when sufficient applications have been received.

With such a high degree of uncertainty for applicants and their employers, it is critical the visa application process is followed correctly and all relevant information and documents submitted.

Do you have a query about the H1B visa lottery?>>

Overview of the H1B Visa

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.

How to improve your prospects of selection

There are a number of ways you can improve your chances of being selected in the H1B Visa Lottery:

  • 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.

How to apply

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.

Filing an H1B petition

Your employer should file their petition when the H1B cap window opens at the beginning of April. This should be no more than 6 months before they wish you to begin employment with them.

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.

A random selection is then made from the regular 65,000 cap.

Any unsuccessful H1B petitions will be denied and returned to the employer with a refund of fees. These petitions may be submitted again when the H1B visa window opens again the following year.

For a successful petition, the next stage will be processing through USCIS to check that the petition meets all the requirements for an H1B visa.

The petition may be rejected at this point if insufficient supporting evidence has been submitted. In this situation, the petition would be returned with a refund, or the employer would be issued a Request for Evidence (RFE).

If the petition is successful at this stage, it will then be examined by an immigration officer to make sure that you and your employer meet all of the H1B visa requirements.

It the petition fails at this stage, it will be rejected. The employer does, however, have the option of appealing the decision.

If the petition is successful, it will be approved. This is, however, subject to you successfully making your Online Non-immigrant Visa Application.

What are the alternatives to an 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 the your H1B visa petition is completed correctly, the required documentation is compiled, and that the application process is managed effectively. A 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.

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