The H-1B lottery registration process allocates the annual allotment of “cap-subject” H-1Bs by random selection. For each fiscal year, there are only 85,000 new (or “cap-subject”) H-1Bs available: 65,000 for foreign nationals with a bachelor’s degree (or equivalent) from a US or foreign college or university (“Regular Cap”), and an additional 20,000 for foreign nationals with a graduate degree from a US college or university (“Master’s Cap”). In short, the H-1B nonimmigrant visa classification is for foreign national workers in “specialty occupations,” meaning occupations that require the theoretical and practical application of highly specialized knowledge (generally by requiring at least a bachelor’s degree or equivalent in a specialized field relevant to the occupation).
When is the registration period?
The registration period is open for approximately two weeks in early March of each year.
Historically, employers have been notified by the end of March of selected registrations and then have had 90 days to file an H-1B petition with US Citizenship and Immigration Services on the employee’s behalf.
What is the registration process?
Employers wishing to sponsor foreign national employees for initial cap-subject H-1B status will complete an online registration that requests information about the sponsoring employer and the sponsored foreign national employee and—as a result of a new weighted selection process that will prioritize the highest-paid H-1B beneficiaries—information about the location(s) of employment, the occupation, and the wage level offered. The current fee charged for each registration an employer submits is $215.
What foreign national employees should be sponsored?
Employers should immediately identify employees and begin working with immigration counsel to evaluate employees who will need H-1B sponsorship.
Employers should consider the following employees for H-1B sponsorship:
- Foreign national employees who are in F-1 student status and working, pursuant to a period of Optional Practical Training (OPT), after completing a US degree program. OPT is generally limited to 12 months. However, students who received a US degree in a science, technology, engineering, or math (STEM) discipline may be eligible for an additional 24 months of employment authorization. Employment beyond the period of OPT is typically contingent on securing an H-1B.
- Employees in L-1 status, whom you are sponsoring for lawful permanent residency (or will sponsor in the future) but who are unlikely to receive a “green card” within the allotted period of admission (i.e., five years if in L-1B status or seven years if in L-1A status). Your Nixon Peabody legal professional can help evaluate H-1B options for your L-1 employees.
- Any potential employees currently abroad who you wish to employ in the United States. It is important to note, however, that petitions for selected foreign nationals currently abroad (i.e., “consular processing”) and not in the US in another immigration status would be subject to an additional $100,000 fee.
- Employees or potential employees currently authorized to work pursuant to an immigration status that is being cancelled by the current administration.
- Employees or potential employees working pursuant to an Employment Authorization Document (EAD) not eligible for automatic extensions, and therefore at risk of a gap in employment authorization.
What is the next step for employers?
If you are interested in sponsoring a foreign national for H-1B status in the upcoming lottery, your Nixon Peabody legal professional can discuss the H-1B process with you further, as well as alternative work authorization options that may be available (e.g., O-1, etc.).