What is the H-1B Visa Lottery?
The H-1B visa lottery is the process by which the U.S. government administers professional work-sponsored visas. It’s a lottery because the number of new visas that are issued each year is capped at 65,000, with an additional 20,000 available to graduates of US Master’s degree programs. And the number of applicants trying to get those visas far surpasses the available number.
For the last three years, USCIS has administered the lottery through an online registration system that opens in March. Employers enter some basic information about the company and the individual it hopes to sponsor, and are notified electronically by the end of March if the individual it seeks to sponsor has been selected. Once the lottery closes, an employer must wait a full year for a new registration period to open.
How the H1B Lottery Works
- A random lottery is conducted to select applicants to fill the 58,200 spots available in the general lottery. (Although there are technically 65,000 visa numbers available in the general H-1B pool, 6,800 of these are reserved for nationals of Singapore or Chile).
- A second random lottery (the “master’s cap”) is then conducted among all applicants who were not selected in the first lottery and who have advanced degrees from accredited US universities. An additional 20,000 spots are allocated during this lottery.
- The order in which the lotteries are conducted is important because it means that applicants with a US Master's degree are entered in two separate lottery rounds and have a higher chance of being selected.
- Lottery winners are notified electronically about selection and have 90 days to file a complete H-1B petition.
Is the H1B Lottery Really Random?
Yes, the H-1B visa lottery registration process is truly random. There are no special steps that you can take to increase the odds of your selection. As long as the registration is properly submitted, the only reason that your registration can be rejected is if it is identified as a duplicate registration, meaning that the same employer has submitted more than one registration for the same beneficiary.
What are the chances of being selected in the H-1B lottery?
It’s really unfortunate that the US administers its professional visas through a lottery system, because the odds of being selected are not good, and they’ve gotten worse over the last several years.
In 2020, USCIS received 274,237 registrations. In 2021, the agency received 308,813 registrations. In 2022 it received 483,927 registrations.
Based on these numbers, for the most recent year, registrants had about an 18% chance of being selected. But the odds are actually more complicated than this, since not every registrant who is selected actually files an H-1B. In 2020, USCIS administered 2 additional lottery rounds, and in 2022, USCIS administered 3 additional rounds! If this trend continues, then 2022 may also see additional rounds, which will increase the statistical likelihood of being selected in the lottery.
- 483,927 Registrations Submitted for FY 2023
- 127,600 Registrations Selected for FY 2023 Season
- 48,000 Employers, 31% US Masters Quota for FY 2023
Best Way to Increase Your H-1B Lottery Chances
Some individuals try to increase their H-1B lottery chances by having multiple employers file registrations on their behalf. While there is no legal prohibition on duplicate registrations, there is a prohibition on filing frivolous registrations.
An employer who submits a registration on behalf of a beneficiary must have a good faith intention to file an H-1B petition and ultimately employ the beneficiary in H-1B status. A beneficiary who is lucky enough to have multiple potential employers willing to sponsor him or her must have a good faith intention to work for the sponsoring employer if selected.
This is a particularly important consideration for companies that have multiple affiliated companies within their corporate group. Companies should think carefully before filing multiple registrations for the same beneficiary by having different legal entities submit the registrations.
When should I apply for H-1B?
Although it's important to position yourself for a future lottery application as early as possible, you're limited in terms of when you can actually apply. The initial registration period generally occurs in the first 3 weeks of March, with selected registrants eligible to apply between April 1 and June 30.
If there are additional lottery rounds, applicants will generally have a 90-day window in which to apply after receiving notification of selection.
If you miss the annual registration period in March, you will need to wait until next year to submit a registration.
H-1B Registration Requirements
The registration requirements are limited. There is no investigation of either the employer or the beneficiary's eligibility for H-1B classification during the electronic registration process. However, it is generally advisable to consider the longer-term strategy in advance of submitting a registration in order to avoid issues if the registration is selected. The following are the steps to submit a registration:
- An accredited representative must first create a registrant's USCIS online account.
- The authorized representative must honestly and accurately provide some basic information about the sponsoring company, including the company address and the employer identification number.
- It must attest that it has not colluded with any other party to submit multiple registrations for the same beneficiary with the hope of unfairly increasing the odds of selection.
- In addition, the registrant must enter the basic biographic details of the individual that it seeks to sponsor.
Can I register for H-1B myself?
No, the H-1B visa classification requires employer sponsorship. This means that only an employer can submit a registration for an H-1B worker. It also means that, if your registration is selected, you need to commit to working for that employer if you want to benefit from your lottery selection.
Because the registration process is employer-specific, the only way that you can change employers after your registration is selected is if the employer who originally entered you in the lottery first files a petition and USCIS approves it.
What is the minimum salary to apply for H-1B?
The H-1B prevailing wage is the average wage rate paid by employers to similarly-employed workers in substantially comparable jobs in the geographic area of intended employment. H-1B beneficiaries must be paid either the prevailing wage for the occupation, or the actual wage paid to similarly situated employees at the worksite, whichever is higher. Figuring out the minimum required wage can be a reasonably complicated process and one that should ideally be discussed with an attorney prior to proceeding with registration. A determination depends on 3 different factors:
- How the occupation is classified: H-1B sponsors are required to rely on a US govt. database to classify the role that is offered to an H-1B beneficiary. This database relies on the 2018 Standard Occupational Classification (SOC) system. All workers are classified into one of 867 detailed occupations according to their occupational definition. The SOC system is imprecise and incomplete - some occupations, such as Product Managers, Data Scientists, or UX Designers, don't appear there at all. Sponsors, must carefully scrutinize the available options and choose the classification that most closely resembles the role that it is offering to the H-1B beneficiary.
- Where the worksite is located: wages are determined according to metropolitan statistical areas defined by the U.S. Bureau of Labor Statistics. Worksites located in areas like San Francisco and New York City typically going to have higher prevailing wages than worksites listed in less densely populated areas.
- Requirements for the role: the Occupational Employment Statistics database assigns 4 wage levels for each occupational classification. These wage levels reflect a progression of responsibility and discretionary authority across an occupation, reflected by higher job requirements as a role progresses. A Level 1 wage is generally an entry-level role, while a Level 4 wage will reflect a fully competent and experienced employee in the occupation.
What happens if the Employer can't pay the required minimum salary?
If the employer can't afford to pay the minimum required wage, it might want to consider hiring the H-1B beneficiary on a part-time basis. This is a common practice, and completely permissible for both the employer and the employee. Note that a beneficiary who is working in part-time status is free to find another H-1B employer willing to sponsor him or her for concurrent employment. If this happens, the second H-1B employer is not required to enter the H1B lottery and go through the registration to employ the H-1B worker.
How to Check H-1B Lottery Results?
The employer "registrant" will receive a notification when a beneficiary is selected in the lottery. The beneficiary is not separately notified of the selection.
Selections can theoretically be made throughout the year, so registrations will remain active unless the registration is withdrawn or USCIS announces that it will not be conducting any future lottery rounds. Employers will receive an e-mail notification when the registrant account is updated and should log in to myUSCIS periodically.
What happens if you are selected in the H-1B lottery?
The next step after entering the lottery and being selected is to file the H-1B petition with USCIS. There is no requirement that an employer who submits a registration actually file an H-1B petition, but if the employer wants to secure H-1B employment for the individual it entered in the lottery, the H-1B petition must be filed in the 90-day window after the selection takes place. If a petition is not filed, the beneficiary will lose the benefit of being selected in the lottery.
H-1B Visa Fees
- All H-1B filing fees must be paid by the sponsoring employer. There is a $460 filing fee, a $500 fraud fee, and an additional fee of $750 (for companies with less than 26 employees) or $1500 (for companies with 26 or more employees).
- In addition, there is an optional $2500 premium processing fee. Payment of this additional fee obligates USCIS to act on the H-1B petition within 15 calendar days. Whether or not it makes sense to pay this additional fee will depend on the facts in any given case, but generally, it is not necessary. In recent years, H-1B cap processing has been very fast (at around 1-3 months), and given that the earliest possible start date may be as much as 6 months after the petition is filed, most employers and employees are not gaining much by filing a premium request for a cap case.
How does Premium Processing Work?
Premium Processing is an optional service. It requires an additional payment of $2500 and obligates USCIS to act on a petition within 15 calendar days. There are three ways that USCIS can choose to "act" on a petition:
- It can approve the petition.
- It can deny the petition.
- It can issue a Request for Evidence (RFE) asking for supporting documentation.
It's unusual for USCIS to deny a petition without first issuing an RFE, but H-1B companies and beneficiaries should be aware that RFEs are pretty common. If an RFE is issued, the 15-day premium processing clock will reset after the RFE response is submitted. This means that the total time to process an H-1B petition filed under Premium Processing might be closer to 6 weeks (if, for example, it takes 2 weeks to prepare and submit the RFE response).
How long does it take to get an H-1B visa?
Preparing and filing an H-1B petition is a much more involved process than entering an individual in the lottery. In addition to working with an immigration attorney to ensure eligibility and compliance, the employer must agree to pay both legal and filing fees. The petition is filed with USCIS and is generally adjudicated quickly - between 2 weeks and 3 months from filing. Regardless of when the petition is approved, the earliest that an employee can start working in H-1B status is October 1.
Beneficiaries should be aware that having an H-1B petition approved is not the same thing as having an H-1B visa. The approval will authorize an H-1B beneficiary to live in the US and work for the H-1B sponsor for the duration of the 3-year petition validity, but it is not a travel document.
If an H-1B worker wants to travel internationally, he or she will need to obtain a visa at a U.S. consulate outside of the U.S. before reentering the country. The only exception is trips to Canada or Mexico of 30 days or less.
H-1B Attorney Tips for H-1B Cap Visa Applicants
- The number 1 piece of advice for someone interested in applying for the H-1B cap lottery is to plan ahead! Identify a company willing to sponsor you as early as possible and then sit down with the authorized company representative to discuss plans and backup plans well ahead of the H-1B registration period.
- Although the H-1B registration process is an administrative task, preparing to file an H-1B petition requires careful consideration and strategy. You'll want to discuss the essential elements of H-1B eligibility before the company submits its registration. This includes prevailing wage, positioning the offered role as a "specialty occupation," and establishing how your specific degree qualifies you to perform the duties of the role.
- For recent graduates in F-1 OPT status, it's important to submit a registration in the H-1B lottery at your first opportunity, even if you have several years of STEM OPT authorization ahead of you. Since the odds of being selected are fairly low, you need to give yourself every opportunity to be selected.
- Start thinking about your "Plan B," early. Don't wait until you're almost out of OPT time before considering alternatives such as the O-1 visa or green card sponsorship. These alternatives take a considerable amount of time to prepare, and the most successful graduates will start investigating Plan B options early in their OPT period.
What are my options if I’m not selected?
Wait and try again
If you are not selected in the first round of the H-1B lottery, one option is to wait and see if there are additional lottery rounds or apply next year.
Whether or not this is a strategy that makes sense depends on your specific circumstances. For example, if you are a recent US graduate who has a full 3 years of STEM OPT employment ahead of you, then this might be a reasonable approach.
On the other hand, if you did not graduate from a STEM program, and you only have one year of OPT, this is going to feel like a big risk and you should consider your “Plan B,” sooner rather than later.
PERM Green Card
This might sound counter-intuitive, but applying for an employment-based green card can be a great alternative to the H-1B lottery for recent graduates. This is especially true for graduates who are from countries other than India and China, and who have a full 3-year sof STEM OPT employment authorization.
PERM green card processing times have increased in recent times, and you can expect the process to take at least 2-3 years to complete, but this is often enough time for recent graduates to avoid a gap in work authorization.
The great thing about getting a PERM green card as a recent graduate is that you can totally remove yourself from the uncertainty of the H-1B lottery!
Cap-Exempt H-1B Status
Another option for an individual who is not selected in the H-1B lottery is to try and secure employment through a cap-exempt employer. Institutions of higher education and non-profit research organizations qualify to sponsor H-1B workers throughout the year without being subject to a cap or needing to enter a lottery.
What’s more, in some cases you can benefit from cap-exempt H-1B status even if you’re not working for the cap-exempt employer on a full-time basis. If you’re working for a cap-exempt employer on a part-time basis, you can qualify to work for a cap-subject employer at the same time without entering the lottery!
For example, if you’re a recent engineering graduate and you’re sponsored by your alma mater to provide tutoring services to its engineering students for 5 hours a week, you could also work for 35 hours a week at a for-profit engineering firm under concurrent cap-exempt H-1B status. There are organizations out there that will help facilitate this kind of employment for a fee, but employees do need to be able to identify a for-profit employer willing to sponsor them and pay the fees.
H-1B1, TN and E-3 Visas
There are a number of country-specific visa categories that have been created to support the employment of nationals of treaty countries.
Professional workers from Singapore and Chile can qualify for an H-1B1. It sounds like “H-1B,” but the ”H-1B1” has some unique differences - chief of which may be that there is no lottery required!
Professional workers from Canada and Mexico are generally eligible for admission in TN status as long as they have an offer of employment in an occupation listed on the TN appendix, and a degree that qualifies them to perform the role.
Professional workers from Australia qualify for an E-3 visa.
O-1 Visa for Individuals of Extraordinary Ability
An O-1 visa is an option for individuals who are at the very top of their field of endeavour, loosely defined as the top 10% as demonstrated by a record of specific accomplishments and accolades.
This can be a tough evidentiary burden for a recent graduate. Individuals who are interested in this option should take a long view and give themselves at least a year prior to applying to establish a record of achievements that may qualify them for this classification.
L-1 Visa for Intracompany Transferees
If you’re lucky enough to be offered a role at a US company that has a branch, affiliate or parent company operating outside of the US, then working abroad for a year might qualify you for an L-1 intracompany transferee visa in a year’s time.
If you’re currently in the US on OPT status, you have the option of starting your own company and working for yourself. Options like the International Entrepreneur Parole Program, the E-1/E-2 visa (for nationals of treaty countries), and the O-1 visa provide pathways to extending work-authorized status for founders past OPT expiration.
Help with H-1B Visa Lottery
If you need help with U.S. green cards or the H-1B Visa lottery, you can post a job on UpCounsel to get help from an immigration attorney. UpCounsel accepts only the top 5 percent of lawyers on its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.