H-1B visas serve as one of the primary pathways for foreign national professionals to work temporarily in the United States. Typically utilized by U.S. corporations and organizations in need of specialized skills, understanding the intricacies of this visa program is essential for both employers and prospective employees.

H-1B Visa Basic Requirements and Procedures:

To initiate the H-1B process, a U.S. employer must file a petition with the United States Citizenship and Immigration Services (USCIS) on behalf of a foreign employee. Essential criteria include:

  • The job requiring at least a bachelor’s degree or equivalent in a specific field, a qualification the employee must possess.
  • The employer must commit to offering salaries and benefits comparable to those offered to U.S. workers in similar positions.
  • Compliance with the H-1B program’s specific public notice and recordkeeping obligations.

H-1B Visa Cap

The number of H-1B visas approved annually is subject to strict limitations. USCIS allocates 65,000 new H-1B petitions each fiscal year, with an additional 20,000 reserved for individuals with advanced degrees from U.S. institutions. Certain exemptions exist, such as a carve out provision of the total 65,000 cap for nationals of Chile and Singapore as well as exemption from the cap for employees of educational institutions and affiliated nonprofit entities.

How Does the H-1B Cap Lottery Work?

Each year, the demand for H-1B visas often exceeds the available quota, leading to the necessity of a lottery system. During the registration period, employers submit their H-1B petitions electronically through their myUSCIS.gov accounts. This typically occurs from early to mid-March annually.

Once the registration period concludes, USCIS conducts a lottery to select beneficiaries from the pool of registered petitions. Initially, USCIS selects 20,000 petitions from those with advanced degrees from U.S. institutions. If any advanced degree petitions remain unselected, they are then included in the general pool for the remaining 65,000 cap-subject H-1B visas.

USCIS notifies selected candidates over subsequent weeks (and sometimes months) following the registration period. This lottery system aims to fairly allocate available H-1B visas while managing the overwhelming demand from employers and prospective employees alike.

Beginning with the 2025 Fiscal Year, USCIS has implemented a new beneficiary-centric system to ensure that a beneficiary is only entered into the lottery once, regardless of how many employers may wish to sponsor them. If they are selected, they will then choose the employer to sponsor them.

Filing the H-1B Petition:

Employers of selected beneficiaries may submit the H-1B petition no earlier than six months before the proposed employment start date, often on April 1 for an October 1 commencement. USCIS will then review and determine the eligibility of the petition.

Exemptions from the H-1B Visa Cap

Employees of government research organizations; Individuals presently in H-1B status; Individuals who previously held H-1B status within the past 6 years and have not left the U.S. for more than one year after their last stay in H-1B status; and, Physicians who held J-1 (exchange visitor) status and received a waiver of the 2-year home residence requirement pursuant to the request of an interested government agency. The prospective employee may either change his or her status from an existing immigration category to H-1B or present the approved H-1B petition at a U.S. consulate abroad to receive an H-1B visa. H-1B status, when initially approved, gives the individual up to three (3) years of authorized employment with the sponsoring employee. The employer may seek extensions of the H-1B employment after this period up to six (6) years total. In some cases, the employee may receive more than six (6) years of H-1B time depending on his/her progress through the green card process.

H-1B Visa Benefits for Dependents:

The H-1B visa category also extends benefits to accompanying spouses through H-4 dependent status. H-4 spouses of certain H-1B visa holders who have applied for lawful permanent residency may be eligible to apply for employment authorization.