Ready, Set, Go! How Employers Should Prepare Now for the H-1B Cap Lottery

H-1B visas authorize highly educated non-citizen professionals to work for U.S. employers in specialty occupations.  Current law limits the number of new H-1B visas issued each fiscal year.  The H-1B quota  for this fiscal year is 65,000 for those who hold at least  a bachelor’s degree or its equivalent. In addition, 20,000 H-1B visas are set aside for those who hold a U.S. master’s degree or higher. The H-1B selection process is very competitive. Last year, the USCIS received a record 275,000 registrations for these visas.  This year’s registrations will probably exceed that record.

Employers who plan to hire or retain potential H-1B visa employees should prepare now for the H-1B cap registration period (“H-1B Visa Cap Lottery”), which runs from March 9 through March 25, 2021.    The United States Citizenship and Immigration Services (“USCIS”) intends to select from the registrations no later than March 31, 2021. Registrations are submitted electronically through a USCIS online account established by the employer or its attorney.

An employer may only submit one registration for each employee, Submitting more than one registration for the same employee will invalidate all registrations for that employee.  However, an employee can have multiple registrations from different employers.

Here are the key steps employers need to take now to participate in the extremely competitive H-1B visa cap lottery:

• Designate a company representative responsible for the electronic registration.
• Identify potential employees who need an H-1B visa, particularly those with expiring F-1 OPT employment authorization.
• Gather the necessary data required such as the federal employer identification number (FEIN) for your company, the  employee’s passport information, detailed job description, and the employee’s degree certificates. If you have multiple entities, be sure to register the company that will actually employ and pay the employee.
• Determine whether the employee is eligible for the master’s cap or bachelor’s cap.  Note that master’s degrees awarded by for-profit U.S. universities generally do not qualify for the master’s cap.
• Calendar the deadline for registration and don’t miss it!

If your H-1B cap registration is not selected, consult with an immigration attorney to determine whether other viable work visa options are available to legally hire the employee.  Work visas have very specific requirements so an immigration attorney will evaluate your company and your employee’s eligibility for these visas.

If your registration is selected, you must submit an H-1B petition to the USCIS along with approved labor condition application (LCA) from the Department of Labor by June 30, 2021.  Typically, the preparation of an H-1B petition and LCA can take two to four weeks so start the process immediately after selection.  The USCIS does not guarantee its own processing time unless you pay a $2500 premium processing fee in addition to the required application fees which range from $1710 to $2460.

If your H-1B petition is approved, the validity period, which is the authorized period of employment, can start no earlier than October 1, 2021 and can end no later than September 30, 2024.  Employers can apply to extend the employee’s H-1B visa if needed; however, the employee cannot hold H-1B visa status for more than six consecutive years, unless the employee has applied for a green card. Applicants for H-1B extensions are generally not required to register for the H-1B cap lottery.

By the sheer number of annual applicants, it’s clear that H-1B visas are coveted in the competition for global talent.  Prepare now and make sure your company stays in the running.

This article is intended to help you understand immigration basics,  is offered only as general information and education, and is not legal advice or legal opinion about your specific circumstances. You should not act or rely upon the information in this article without seeking the advice of an immigration attorney.

For a comprehensive evaluation of your immigration options, you are invited to call us at 214-393-4917, or complete our contact form below.