The 12 Notes of H-1B Sponsorship: What U.S. Employers Should Know About the H-1B Lottery

December 11, 2017

The 12 Notes of Christmas H-1B Sponsorship: What U.S. Employers Should Know About the H-1B Lottery

The holidays are just around the corner, closely followed by the H-1B lottery during the first week of April. Though the deadline may seem far off, now is when U.S. employers should begin to consider which foreign workers they would like to sponsor for an H-1B visa. Below are 12 things that U.S. employers should know about the H-1B lottery:

1. The foreign worker must be sponsored for a specialty occupation. A specialty occupation is one that requires “theoretical and practical application of a body of highly specialized knowledge and attainment of a bachelor’s or higher degree in the specific specialty”. Degrees in business are usually excluded from being a specialty occupation.
2. There are 65,000 slots in the H-1B lottery for foreign workers only holding a bachelor’s degree.
3. There are 20,000 additional slots for foreign workers holding a master’s degree from a college or university in the U.S. These workers are entered in both the bachelor’s lottery and the master’s lottery. The master’s degree must be in a field related to the sponsored position.
4. The U.S. employer must be prepared to pay the prevailing wage, as determined by the government. The U.S. Department of Labor determines how much U.S. companies must pay H-1B visas holder based on their occupation in a metropolitan statistical area. Level 1 wages have received a lot of scrutiny from the government in the past few months and should be bumped to Level 2 wages, if possible.
5. It may take until the end of June to know if a foreign worker was selected in the H-1B lottery.
6. If the U.S. employer’s H-1B petition is not selected in the lottery, then the government filing fees are returned.
7. Premium Processing is an option, for now. Premium Processing was suspended during the most recent H-1B lottery but has been permitted for the upcoming H-1B lottery. Premium Processing costs $1,225 and requests that the USCIS respond to the petition within 15 calendar days of being selected.
8. Although the lottery takes place in April, the earliest the foreign worker can start work is October 1. Foreign workers may not start before October 1 (unless they are covered by the Cap Gap) and must hold an H-1B approval notice before beginning work.
9. The maximum stay for a foreign worker in H-1B status is 6 years, unless the company begins the process of sponsoring the foreign worker for a green card. Foreign workers who hold an approved I-140 may renew their H-1B status in 3-year increments until they have their green card in hand.
10. H-4 visa holders (spouses and dependents of H-1B visa holders) cannot work unless the H-1B spouse holds an approved I-140.
11. Requests for Evidence (“RFEs”) are likely and may delay the process. A recent policy change at the USCIS has led to increased scrutiny for H-1B petitions. This means that more RFEs are being issued, which can increase the cost and processing time of H-1B petitions.
12. H-1B visas put foreign workers in a good position to transition into the green card process. There is no dual-intent issue with foreign workers going from H-1B visa holders to green card holders.

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Victoria Gentry is an associate attorney with The Immigration Group, P.C.  practicing exclusively in the areas of work visas and employment-based green cards. She first became interested in immigration law when her stepfather emigrated from El Salvador to the United States. Now she enjoys assisting corporate clients with a variety of immigration needs including international transfers, visa eligibility, and the green card process. She works primarily with professionals in IT, Engineering, Finance, Pharmacy, and Insurance.