Updated: Feb 8
With the lottery season fast approaching, a lot of foreign national employees are looking to understand what it takes to get through the lottery and to file a successful petition with USCIS.
Why does H-1B selection happen via lottery?
The short answer is because there are more people applying for the H-1B visa than there are visas available. The U.S. government opens 85,000 new H-1B visas every year and there are over three times visa applications that are received. So, because of the lack of a better way to pick applicants, USCIS resorts to running a random selection process. To learn more, you can read our article about the process and an employee's odds of getting picked.
Are there one or two rounds of lottery?
There is generally just one round of lottery. But given that USCIS tried a new format of lottery registration in 2020 and the pandemic meant that USCIS wasn't able to fill out all the visas in round 1 and so ran another lottery later in the year to fill the 85,000 slots. There is a possibility of there being two rounds of lottery in 2021 as well since we are not over the pandemic period yet.
With that sorted, let's take a look at the whole process - from applying to the lottery to successfully starting on the H-1B visa. But first let's tackle some myths that you'll hear from your friends or colleagues or may see on the immigration forums.
Myth 1: The H-1B Lottery is not random
Untrue. The H-1B lottery is totally random. As the process stands now, USCIS does not cherry pick applications based on any criteria. While the Trump administration has talked about ending the lottery and filtering the applications based on the salary, it still remains to be seen if the rule will pass and if passed, might be challenged in court.
Myth 2: The H-1B Lottery selection depends on an employee's salary
Untrue. An employee's salary does not have any factor what-so-ever in determination of the H-1B lottery selection. The salary data is not even asked when the company and its employees are registered for the lottery. However, as mentioned above, if the proposed rule were to pass, it would have an impact on the lottery selection.
Now that we have put some things to rest, let's look at the process assuming that it will be run the same way it was run in 2020. Here are the steps and timelines -
When to apply for H-1B in 2021?
STEP 1: H-1B Lottery Process
(1) March 09 - 25: Lottery Registration Opens
USCIS opens the registration process on March 01. At this time, the attorney that is representing the employer (and not the employee) will work with the company's point of contact (HR manager or Hiring Manager) to register the company and employee for the H-1B lottery.
Note - if the company has never been registered for the lottery before, then the attorney needs to first register the company with the Department of Labor (DOL) and register it for the lottery after registration confirmation from the DOL. The DOL's registration confirmation takes a few days.
(2) March 31: USCIS runs the lottery
USCIS runs the lottery on March 31 and starts sending out communication the same day to companies whose employees have been selected for the lottery.
Note - the point of contact and the attorney get confirmations from USCIS only for the employees that have been selected. If no employee is selected in the lottery for a particular company, no communication is sent out.
For the employees that are selected, USCIS sends out instructions to download the I-797 (Approval Notice) with the lottery result and outlining the next steps.
(3) March 31 - April 01: Lottery results announced
Confirmation emails are still going out on April 01, so if you don't hear by the end of day April 01, chances are that your employee did not make the cut.
(4) August - September: Possible second lottery
People who were not picked in the first round are reconsidered during this second round of lottery and the same steps are followed.
Note - only the employer's point of contact and the attorney will get communication from USCIS. Employees do not receive any communication from USCIS.
What happens after you are selected in the lottery?
Once an employee is selected in the lottery, a petition needs to be filed within 90 days from decision date to be considered for receiving the H-1B.
STEP 2: Labor Condition Application
The Labor Condition Application or the LCA is required to prove to the U.S. government that the foreign national employee will be paid a wage that is above the Prevailing Wage (PW) published for the position. The prevailing wage is decided by the Department of Labor (DOL) and published for specific job categories. The prevailing wage depends on -
the location of work for the employee (state, county and metropolitan statistical area)
and the level of experience required to do the job
The prevailing wage recommendation is made by the attorney for a job category that he/she thinks best suits the employee's job description and role. The employer acknowledges to pay above the prevailing wage during the labor certification process.
Managing LCAs and the Public Access Folder can be a pain, especially if your team works remotely.
WayLit automatically posts and removes the LCA electronically based on DOL's guidelines.
Note - the proposed wage for H-1B that meets the criteria of prevailing wage does not have to be paid to the employee until October 01 or from the date of the start of their H-1B status.
Timeline - Once the LCA has been prepared and uploaded to DOL's website, the employer needs to post the LCA within 24 hours, based on DOL's regulations, for 10 consecutive days. In the meantime, the DOL should approve the LCA. It is only after 10 days of the LCA being posted and removed, can the H-1B petition be filed with USCIS.
STEP 3: H-1B Petition
Once the DOL approves the job category and offered wage, the attorney should be able to file the H-1B petition which needs to be accompanied by the approved LCA.
Timeline - the timeline to file the H-1B petition depends on the attorney that's representing the employer. The only critical date to keep in mind is that the petition is submitted with USCIS by July 01 (90 days from the date of decision - March 31).
Note - it's a good idea to track the following -
The petition packet has reached USCIS
The check for filing fee have been cashed out by USCIS
Tracking case and all aspects of the petition filing and submission are built into WayLit.
Get updates on your case whenever a task is completed and an action is taken.
Once the petition makes it to USCIS, the agency issues a notice stating the case number that can be used to track the status of the case. The notice is sent to the attorney and the employer.
Tracking the case: The employee should be able to track the status of the use through USCIS' website. The beneficiary/employee can create an account with USCIS to receive email alerts on the case.
Filing with Premium Processing: The petition can be filed with a premium processing request. The fee for requesting premium processing has increased to $2500. With premium processing, USCIS has to decide on the petition within 15 business days (used to be 15 calendar days).
STEP 4: Decision
The time USCIS takes to make a decision on the case varies on the amount of caseloads that the agency is dealing with at the service center assigned to the case. Everyone desires for an approval on the case but a case could receive a Request for Further Evidence (RFE) or in extreme cases a Notice of Intent to Deny (NOID).
RFE: A request for evidence can be received if the USCIS adjudicator feels that the case for a specialized occupation hasn't been made by the employer. The RFE is issued for a number of reasons including failing to provide evidence that the job is a speciality occupation, not paying the correct government fee etc.
NOID: The NOID is used for situations where the adjudicator (the person evaluating the petition) believes that the petition should be denied, but that the petitioner may have additional evidence that might lead the petition to be approved.
APPROVAL: If the case is approved, USCIS sends out a Notice of Approval (I-797) to the employer's point of contact and the attorney.
Note to employee - You should get the original approval notice from the attorney or from your employer. Keep this safe for your records.
Note to HR manager - At the start date of the employee's H-1B (mentioned in the I-797), you are required to do another I-9 check.
STEP 5: Starting on H-1B
Change of Status - The employee's status will automatically change to H-1B if they are in the U.S. on the date mentioned on the I-797.
Consular Processing Request - If consular processing was requested then the employee will have to go to the U.S. embassy to get the visa stamped on their passport.
Content in this publication is not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult a WayLit-affiliated attorney or another qualified professional.