Beating the Lottery: Understanding and Overcoming the H-1B Cap

By: Attorneys Eric R. Welsh & Nancy E. Miller

dreamstime_m_23861081On Monday, April 3, 2017, the U.S. Citizenship & Immigration Services (USCIS) began accepting petitions from employers seeking to hire professionals with “specialized knowledge” in the H-1B nonimmigrant category.  An approved petition will allow a foreign worker to change status in the U.S. or apply for a visa abroad and start work at the beginning of the fiscal year (i.e., October 1, 2017).  USCIS has announced that once again, it will be using a random lottery to pick petitions for further processing, and will stop accepting petitions once it receives a sufficient number to begin the lottery.  Based on recent years, we expect that USCIS will close the window for filing by around April 10.

USCIS uses this lottery system because the H-1B category is severely oversubscribed, meaning that there are more petitions filed than there are H-1Bs available.  The H-1B is capped at 65,000 for each fiscal year.  Last year, USCIS initially received about three times that number of petitions.  If a petition is subject to the cap but not randomly selected in the lottery, USCIS will summarily reject the petition and return the filing fee to the employer.

Some workers are not subject to the cap and can file at any time.  A person who was already counted against the cap in the previous 6 years and applies for an H-1B with a new employer is not subject to the cap.  Extensions are not capped, and spouses and children applying for H-4 are not counted against the cap.  Certain workers at institutions of higher education, related or affiliated nonprofit entities, and nonprofit or government research institutions are not subject to the cap.  A physician holding a J-1 visa who receives a waiver can avoid the cap.  Persons who possesses a U.S.-earned master’s degree or higher have access to an extra 20,000 H-1Bs, and can still apply in the general pool if that number is met.

Additionally, numbers are set aside within the cap specifically for citizens of Singapore and Chile applying in the “fast track” H-1B1 category (1,400 for Chile, and 5,400 for Singapore).  The requirements to qualify are identical to H-1B, but the procedures for applying abroad are streamlined, and extensions are permitted beyond 6 years.  Because the demand for the H-1B1 is not as high as the H-1B, there are usually visas available for H-1B1 applicants throughout the year, meaning that applicants from Singapore and Chile are not affected by the lottery.

Qualified professionals from Mexico and Canada can avoid the lottery by applying instead for a “TN” visa.  The TN visa is a product of the North American Free Trade Agreement (NAFTA).  Because NAFTA defines a professional more broadly than H-1B, there are typically more options for a Mexican or Canadian applicant seeking to enter to work in a professional capacity.

Other alternatives may exist for professional workers who were rejected by the lottery, or who missed the narrow filing window during the first week of April.  Treaty-trader (E-1) and treaty-investor (E-2) visas are excellent options for nationals of qualifying countries.  An individual can apply for an E-1 visa if the person is engaged in substantial trade with the U.S., defined as at least 50% of the trader’s international business.  An individual who makes a substantial investment into a real and active commercial enterprise in the U.S. can qualify for an E-2 visa.  In additional, certain employees of companies that qualify for “trader” or “investor” status under these criteria can receive E-1 or E-2 visas, as can their spouses and children under age 21.  If the company is majority-owned by citizens of the treaty country, the E visa may be a viable option.

Workers who are currently employed abroad might avoid the H-1B visa if they are seeking a transfer to an office in the U.S. that is affiliated with the foreign employer.  Such a worker may be qualified to apply for an “L” via for intracompany transferees.  The L visa is available to an employee who has worked for at least 12 months during the last three years for a foreign employer, and is seeking to transfer to an office or organization in the U.S. that is a branch, affiliate, subsidiary, or parent of the foreign organization.  The L visa is only available to employees who are executives, managers, or who have specialized knowledge.

Playing the lottery rarely comes with good odds, and the H-1B lottery is no exception.  Every applicant has unique circumstances, and persons who are serious about living and working in the U.S. should consult with a knowledgeable and experienced immigration attorney to plan for the possibility of lottery rejection, or to explore other options that may prove better than the H-1B.