Understanding the H1B Visa Lottery

Each year there are far more petitions submitted for H1B visas than can be issued, since there is an annual cap on the number of H1B visas given to foreign workers.  The cap is set at 65,000 for highly skilled workers and 20,000 for those with master’s degrees or higher.  Many foreign applicants are confused about what happens when there are too many petitions, and how the numerical limit is filled.

The H1B Lottery

H1B visa petitions are accepted the first day of April, and if the number exceeds the cap within the first five days of April then the H1B lottery is used.  The ‘lottery’ is simply a random computer generated process of selecting the numerical limit from the total number of petitions received.  Any petitions not selected in the lottery are returned to the sponsoring employer, along with the filing fee.

In 2016, 233,000 applications were received to fill the total 85,000 H1B visa slots, which give an applicant about a 1 in 3 chance of being selected.

The fact that the demand for H1B visas always exceeds the number of visas available has brought the spotlight on the lottery system used by USCIS, spurring several lawsuits as well.

A Recent Lawsuit Against the USCIS Questions Whether the Lottery is Fair

There are questions about the fairness and transparency of the H1B lottery systems, since there is little information available about the internal process used by the USCIS.  Last month, two groups of immigration advocates and attorneys brought a lawsuit against the Department of Homeland Security and the USCIS under the Freedom of Information Act to attempt to gain more insight.

The lawsuit seeks to force the agencies to be more transparent in how the lottery system works including the following points:

• What is the process for accepting or rejecting a petition?
• How does the USCIS determine how many petitions to select for the lottery?
• How does the USCIS decide it has enough petitions to meet the numerical limits?
• How are visa usage numbers tracked?
• Are all of the available visa numbers actually issued?

In essence, the groups claim that all the H1B petitions disappear into a ‘black box’, with no way to know exactly how the lottery system is organized or implemented.

Another class action lawsuit is asking for a rule change that would allow rejected petitions from the previous years to be given priority in the current year.  This does seem like one way to ‘reward’ rejected applicants, and give them a place in line ahead of new petitions.

What Can You Do To ‘Win’ at the H1B Visa Lottery?

There are two steps that you can take to give yourself the best possible chance of having your petition selected during the lottery.

Submit your petition early:  Submitting your petition on time will ensure that you are at least included in the petitions placed into the lottery.  Even if you are still living abroad, you will have the same chance of being selected.

If you have a master’s degree, you can get two chances:  The master’s quota of 20,000 is selected first, and if the number of petitions exceed 20,000 then a separate lottery is used.  If an applicant is not selected in the master’s lottery, they are put into the skilled worker lottery for a second chance.

The reality is that the H1B visa is in much demand, and you are better off trying to find cap-exempt positions than trying to beat the lottery system.  If you have questions about the H1B lottery, finding cap-exempt positions or submitting a petition please contact us.

• November 21st, 2016
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