H-1B Visa Cap - Frequently Asked Questions
Updated December 14, 2022
U.S. employers use the H-1B program to employ tens of thousands of highly skilled workers. USCIS allocates the limited number of new H-1B visas through a lottery system on an annual basis. This FAQ provides information about the H-1B registration and lottery process.
What is an H-1B Visa?
The H-1B visa is the standard visa used by foreign nationals to work in the United States with a U.S. employer. The H-1B "specialty worker" visa is available to foreign nationals who are being sponsored to work in a position that requires a Bachelor’s degree in a specific field of specialty. The H-1B visa is initially valid for 3 years and can be extended for an additional 3 years for a total of 6 years in H-1B status.
Why are H-1B visas allocated by a lottery system?
Congress has limited the number of new H-1B visas that can be issued in any given year. They are given out in two tranches — 20,000 visas for foreign nationals with a U.S. earned Master’s (or higher) degree and 58,200 visas for foreign nationals who otherwise qualify for the H-1B program. Each year many more foreign nationals apply for a new H-1B visa than are available in each of these tranches. As an example, in 2022, more than 400,000 foreign nationals participated in the H-1B lottery. Because of this high number of foreign nationals seeking a new H-1B visa, the USCIS has adopted a formal lottery system as a way to allocate the visas.
How does the lottery process work?
The H-1B lottery process starts with applicants registering to participate in the annual lottery. This is done through an on-line system accessible by employers at www.myuscis.gov. This registration system involves entering basic information about the prospective employer and then about each of the foreign nationals that the employer wants to have participate in the lottery including whether they qualify for the Master’s cap tranche. Registration is done by employers and their immigration counsel beginning in the second week of March and closes at the end of March. The USCIS then conducts two lotteries. The first is for all registered applicants who qualify for the 20,000 U.S. Master’s degree visas. The second (for the remaining 58,200 H-1B visas) is for all U.S. Master’s degree registrants who were not selected in the first lottery as well as all registrants in the general tranche. The lotteries are a random selection process and take place in the last day or two of March. The USCIS informs employers of any registrations that were selected in the lottery within the first day or two of April through the www.myuscis.gov portal.
My case was selected in the H-1B lottery, now what happens?
As noted above, employers are notified electronically through their myuscis.gov account whether any of their registrations were selected in the lottery. For those that are, the employer has 90 days – until June 30th – to prepare and submit an H-1B visa petition for each selected case. Being selected in the lottery does not mean that the foreign national has an H-1B approval – it just allows the employer to file an H-1B visa petition on their behalf. That petition will be approved or denied by the USCIS based on eligibility for the H-1B visa category.
Is it true that the USCIS conducts multiple H-1B lotteries each year?
Yes and no. The electronic lottery system allows the USCIS to know with some precision whether all of the 78,200 H-1B visas have been used in a given year. Each year employers fail to file H-1B visa petitions for some number of registrations selected in the lottery and USCIS denies some H-1B petitions that are filed. While the USCIS takes that into account in determining how many registrations are selected in April, in some years, there are still available H-1B visas by the late Summer or early Fall. In 2020 and 2021, in the midst of the COVID pandemic, this was the case. As a result, the USCIS ran a second lottery in August in both years and in 2021, even did a 3rd lottery in November before all of the H-1B visas were used. Unfortunately, in 2022, all of the available H-1B visas were used based on the initial lottery and as a result, there was no second lottery.
Is Premium Processing available for the H-1B Lottery?
Premium Processing is not available for the H-1B lottery itself. All registrations must be submitted by the same deadline and are run in the lottery at the same time. In years past, USCIS has not accepted Premium Processing requests for H-1B visa petitions selected in the lottery because of case volume. However, USCIS has accepted Premium Processing for H-1B visa petitions for registrations selected in the lottery in recent years, and we generally expect that trend to continue.
Can my employer submit multiple H-1B lottery registrations for me?
No. An employer can create only one lottery registration for an employee. If an employer submits more than one lottery registration for the same employee, then that registration will be rejected as well as all other H-1B registrations of the employer in the lottery. That being said, a foreign national can be registered by more than one employer in the lottery provided that each of the job offers is valid and made in good faith.
Does the Lottery Process Apply to H-1B Transfers?
No. Once a foreign national has obtained an H-1B visa petition approval through the lottery, they are exempt from the H-1B cap and can extend their H-1B visa status or transfer that status to a new employer without going through the lottery process again.
What are my options if my lottery registration is not selected?
If an H-1B lottery registration is not selected, the employer can register that foreign national again in the H-1B lottery in subsequent years. In addition, a foreign national can be included in the lottery if they are living and working outside of the U.S. A foreign national who is in the U.S. on F-1 student status working on Optional Practical Training may be able to participate in the H-1B lottery in multiple years. This is particularly the case for F-1 students who have graduated from a U.S. degree program in a STEM field and have available 36 months of Optional Practical Training employment authorization. These foreign nationals will have at least 3 opportunities to participate in the H-1B lottery. The options for F-1 students whose OPT is ending and other foreign nationals both in the U.S. in another visa status or outside of the US who are not selected in the H-1B lottery are limited and dependent on the foreign national’s status in the U.S. their employer and the nature of the work they do. If you fall into one of these categories, you should speak to a qualified immigration attorney to investigate the available options.
The H-1B lottery process is complex and time sensitive. Parker Gallini LLP starts the process of identifying foreign national employees of our clients who should participate in the lottery in January of each year. If you are an employer with foreign nationals who you would like to sponsor for their first H-1B visa, please contact one of the attorneys at Parker Gallini LLP to understand your options.
For more information, or to ask a specific question regarding the H-1B lottery process, please contact Don Parkeror any of the attorneys at Parker Gallini LLP.