Most U.S. Employers are currently struggling with a common plight: finding workers to fill open and mission-critical positions. In addition to using traditional recruiting and staffing measures, employers should also consider utilizing the H-1B visa program as a way to recruit and retain skilled foreign professionals to fill out their staff ranks. With the open registration period for the H-1B Cap Lottery rapidly approaching, here is a summary of what employers need to know about the H-1B Visa Program.
What is an H-1B Visa?
The H-1B visa category is for temporary (“non-immigrant”) employment for foreign professionals in “specialty occupations” that require at least a job-related bachelor’s degree or the equivalent. Qualifying professional occupations typically include engineers, chemists, computer systems analysts and software developers, scientific researchers, accountants, teachers, and budget and financial analysts. U.S. employers must pay H-1B workers the prevailing wage for their occupations in their geographical area. Generally, a foreign worker may be admitted in the H-1B classification for a maximum of six years, with the U.S. employer initially petitioning for a validity period of up to three years.
Is There a Limit to the Number of H-1B Visas Available?
Most U.S. employers are subject to an annual H-1B visa “cap” or limit, During each fiscal year (“FY”) of the U.S. Government, which starts on October 1st, there is an annual statutory limit of 65,000 H-1B visas available, and 20,000 additional visas for foreign professionals who graduate with a Master’s or Doctorate degree from a U.S. educational institution. In recent years, the demand by U.S. employers for H-1B visas has outstripped the supply. Accordingly, the U.S. Citizenship and Immigration Service (“USCIS”) has implemented a lottery process, known as the “Cap Lottery,” for awarding the limited number of H-1B visas available.
How Does the Lottery Work?
The H-1B Cap Lottery is a two-step process:
- Step 1 – U.S. Employers electronically register a foreign professional for and USCIS conducts the H-1B Cap Lottery;
- Step 2 – U.S. Employers prepare and file an H-1B Petition with USCIS on behalf of the foreign professional, if they are selected in the lottery.
The registration process is affordable as employers do not have to provide any information regarding the position offered to the foreign worker as part of the lottery registration process, and only need to prepare and file an H-1B petition for their “lottery winners.” USCIS has announced that the lottery registration period for the FY 2023 lottery will begin at noon, Eastern Time on March 1, 2022 and run through noon on March 18, 2022. USCIS will select the 85,000 “lottery winners” at the very end of March. Employers will then have a 90-day window to prepare and file H-1B petitions for the foreign workers whose registrations were selected in the lottery. Foreign professionals whose registrations are selected in this years’ Cap Lottery and whose H-1B petitions are ultimately approved by USCIS will have a start date of no earlier than October 1, 2022.
What Should Employers Do Now?
- Work with their hiring managers and experienced immigration counsel to:
- determine whether the offered positions qualify as a “specialty occupation”
- determine the minimum or “prevailing wage” for those identified positions
- select the foreign worker candidates they wish to sponsor for the FY 2023 lottery registration.
- Have your immigration counsel assess the sponsored foreign national’s current immigration status to ensure their eligibility for an H-1B visa and to collect their personal biographical information needed for the lottery registration.
- Create an online account on USCIS’ lottery registration website and provide legal counsel with basic information about the sponsoring organization, including its legal name and Employer Identification Number.
Other Immigration Options U.S. Employers Should Consider:
- Sponsoring foreign nationals who are already working for them abroad, either for a parent/affiliate company or a foreign subsidiary in an executive, managerial or specialized knowledge position, for the L-1A or L-1B intracompany transferee visa.
- Sponsoring Canadian and Mexican professionals who qualify for a TN visa.
- Hiring foreign students who have recently completed or who will soon complete courses of study on an F-1 visa at a U.S. college or university and have an ensuing one- or three-year period of optional practical training in the U.S. available to them.
- Hiring foreign workers with a valid Employment Authorization Document (“EAD”) available to them as accompanying dependents of a principal visa holder (ex. employees in H-4, L-2, or E-3D visa status) or as refugees or asylees.
Given the relative ease and low cost of registering a foreign national for the H-1B Cap Lottery, coupled with the ongoing shortage of available and qualified U.S. workers, U.S. Employers should consider using the H-1B visa as a tool for recruiting highly skilled professional workers who bring innovative ideas and in-demand knowledge to the job. The upcoming registration period for the FY 2023 Cap Lottery, which will run from noon Eastern Time on March 1 to noon Eastern Time March 18, is rapidly approaching, so U.S Employers who are interested in learning more about the H-1B Cap Lottery and Visa process should contact experienced immigration counsel immediately in order to be ready to “play the lottery.”