H-1B Lottery: May the odds be ever in your favor

In many ways, the annual H-1B Lottery (March 1 – Mar 18, 2023) is a lot like the Hunger Games. Hundreds of thousands of foreign nationals will have their names entered into this random drawing. However, unlike the Hunger Games, these H-1B hopefuls actually want to be selected. If you are one of the fortunate 85,000 applicants selected via the lottery, your employer sponsor will be able to petition for you to obtain an H-1B visa. What exactly is an H-1B visa?  Why do so many talented individuals want to come to the U.S. for an H-1B?   

There are several important requirements to qualify for an H-1B visa. First of all, you must be in a “specialty occupation” that usually requires at least a bachelor’s degree.   Many specialty occupations are more obvious like software engineer, however, if you are not sure if your job would qualify it is best to consult with an experienced immigration attorney. Second, your employer must be a legitimate U.S. business and present you with a formal offer letter. Third, your employer must be willing and able to pay you the prevailing wage according to your job title and location. Your attorney should be able to screen the eligibility of both the company and the employee for the H-1B process. 

Advantages of the H-1B visa

1. It’s a dual-intent visa.  While it is still technically a non-immigrant visa, while you’re on an H1B visa, your employer can sponsor you for a green card. 
2. It lasts 3 years and can be renewed to last for a total of 6 years.
3. You will earn a prevailing wage.  
4. You can come from any country. 
5. You can bring your spouse and minor children to live with you in while on your H-1B
6. Most importantly, companies that need qualified foreign employers are willing to sponsor top talent for H-1s. 

Disadvantages of the H-1B visa

1. There is an Annual Cap.
2.  There is a random lottery where the selection in recent years can be difficult (possibly as low as 10-15% depending on the number of entries) 
3. Unlike an E-2 visa which could be renewed for as long as the employer/company is operating, an H-1B has a fixed timeframe of only 6 years.
4. You must be in a “specialty occupation” to qualify for an H-1B visa
5. Like any employment visa, it is tied to your employer; if you lose your job, you’ll lose your visa. 

Why are the H-1B lottery chances so low?  The USCIS only selects 85,000 H-1B applicants each year in the lottery.   20,000 of those applicants are reserved for foreign nationals who hold U.S. Master’s degrees (or higher).  If you have a U.S. Master’s degree, your chances of selection are higher, but still may only be around 1 in 3 depending on the number of submissions.   Essentially, hundreds of thousands of aspiring H-1s are aiming to be one of the 65,000 selected, so the odds are not great. 

In December 2022, Boeing received a huge order of several hundred 787 Dreamliners from United Airlines.  Boeing realizes it does not have enough engineers and needs to recruit domestic and foreign engineers.  In this situation, Boeing would then need to open applications to hire 30 more engineers to fill in the demand for the huge order. After hiring 10 American engineers, they identified 100 foreign candidates that they could potentially hire to fill the remaining 20 vacancies. Boeing’s legal counsel likely advises them that these engineers will need to be placed in the March H-1B lottery. Since the odds of selection may be less than 20%, Boeing likely anticipates that at best, 20 of these engineers will be selected. After the lottery, Boeing will likely have their legal team begin the process to draft H-1B petitions for around 20 of the engineers who were selected. Companies of any size can still take advantage of the H1-B lottery, submitting even just one applicant.   The H-1B Lottery only has a nominal fee and the registration process can easily be done by any U.S. company.  

One additional problem with the H-1B visa that needs to be addressed is layoffs.  If you are on an H-1B visa or any other employment-based visa, if you lose your job you will lose your work authorization and status in the United States. The recent tech layoffs have displaced thousands of foreign workers and put their status and U.S. futures in doubt.  Still, this shouldn’t discourage a foreign employee from considering or accepting an H-1B visa. The H-1 is still a wonderful tool for a career and a path to a long-term future in the United States. Additionally, while the odds of selection in the H-1B lottery are not great, this should also not discourage you or your future employer from placing your name in the lottery.  

The hard work comes after selection and at that time it is best for employers to hire an experienced immigration attorney. Once an applicant is selected in the lottery, the petitioning company only has 90 days to complete the H-1B visa application. If you are a U.S. company that is planning to hire foreign employees on an H-1B, it is a good idea to contact an attorney now or at least before April.  “H-1B Season” is a busy time for many law firms that specialize in employment-based immigration. A good number of reputable firms are or soon will be at their H-1B capacity to accept so many H-1B clients each year due to the work involved. It’s advised no to wait till May before hiring an attorney as an H-1B rush job is not ideal, even if your lawyer has the ability to take your case.         

This article does not constitute a solicitation or provision of legal advice and does not establish an attorney-client relationship.  The answers provided should not be used as a substitute for obtaining legal advice from an attorney licensed or authorized to practice in your jurisdiction. You should always consult a suitably qualified attorney regarding any specific legal problem or matter on time.

About Author

U.S. Immigration Attorney Seth Finberg is a 2005 graduate of the University of Georgia School of Law. Seth is a member of the Georgia Bar, the American Immigration Lawyers Association (AILA), and serves on the Business and Investment Committee for the South Florida chapter of AILA. Mr. Finberg is the owner and founder of South Florida based Finberg Firm PLLC and he represents clients nationwide and internationally in business, employment, and investment immigration. He can be reached by phone at (954)-843-3568 / (954) 249-6603 or by email at seth@finbergfirm.com or www.finbergfirm.com.