What is the H-1B visa?‍

The H-1B visa is a popular work visa that permits a skilled worker to work in the U.S. for a limited period of time. As a "specialty occupation" visa, the holder is employed in a position that requires specialized skills or knowledge. H-1B occupations are professional-level jobs that typically require a university degree, the equivalent, or higher. (The equivalent of a bachelor’s degree is usually considered to be three years of work experience for each year that would normally be spent at university).

The H-1B visa is valid for three years, with one possible three-year extension, making up a six-year maximum stay in total.

‍What are the eligibility requirements?

1. Employee Prerequisites

The Employee/Beneficiary must meet a minimum of one of the following prerequisites:

• Have completed a bachelor’s degree (or higher) in the field of their specialty occupation from an accredited university.
• Hold a foreign degree which is equivalent to a bachelor’s degree (or higher) in the field of the specialty occupation.
• Hold an unrestricted state license registration or certification in the field of the specialty occupation in the intended state of employment.
• Have verifiable and recognized education, experience, or training in the specialty that is equivalent to the completion of a bachelor’s degree or higher.

2. Occupation

Generally, professional-level occupations in engineering, biological, physical, and social sciences, mathematics, and business administration will qualify for the H-1B visa. A bachelor's degree is always the minimum requirement for an occupation to qualify, but depending on the position, an advanced degree (master's degree or Ph.D.) may be necessary.

3. Employer/Petitioner

Any US employer can sponsor an H-1B petition, provided the employer has an IRS Tax Number, also known as an IRS Number or Tax ID Number.

Note: an “H-1B Dependent Employer” is an employer that hires a higher amount of H-1B employees than the normal standard. This is a great risk because the employer will need to provide evidence that qualified U.S. workers are not having their jobs outsourced to foreign labor. Employers listed as H-1B dependent will most likely be questioned on their various recruiting efforts.

Whether or not an employer is H-1B dependent is mainly determined by the size of the company:

• 1-25 full-time employees, of which at least 8 are H-1B workers.
• 26 to 50 full-time employees, of which at least 13 are H-1B workers.
• 51 or more full-time employees, of which 15% or more are H-1B workers.

How to apply for the H-1B visa?

The H-1B visa application process involves many steps for both the employer and employee.

The steps are as follows:

• LCA Certification (completed by the employer)
• Annual H-1B Lottery Registration (completed by the employer)
• Petition Filing (completed by the employer)
• Visa Application (completed by the employee), if not approved for change of status

What is the H-1B Lottery?

The H-1B Visa Lottery is a random selection process to select the required number of applicants from the pool. The maximum number of H-1B visas that can be made available on an annual basis is 65,000 under the regular cap, with an additional 20,000 visas available to applicants holding a master’s degree. 6,800 out of the regular quota are also reserved for citizens of Chile and Singapore as part of a specific Free Trade Agreement.

What is the H-1B Lottery Process?

Since 2020, USCIS has implemented an electronic registration process for the H-1B cap. Prospective petitioners seeking to file H-1B cap-subject petitions, including for beneficiaries eligible for the advanced degree exemption, must first electronically register and pay the associated $10 H-1B registration fee for each beneficiary.

Under this process, prospective petitioners and their authorized representatives, who are seeking to employ H-1B workers subject to the cap, complete a registration process that requires only basic information about the prospective petitioner and each requested worker. There is an initial registration period for a minimum of 14 calendar days each fiscal year. The H-1B selection process is then run on properly submitted electronic registrations. Only those with selected registrations are eligible to file H-1B cap-subject petitions.

To register, employers must first create an online account at the USCIS official website. They may then register one or more prospective employees by providing the following information:

• The legal name of the petitioning organization
• Employer Identification Number
• Authorized signatory’s name, title, and contact details
• Employer’s address
• Prospective employee’s name, date of birth, gender, country of birth, and citizenship
• Prospective employee’s academic qualifications

Employers whose registrations are selected in the lottery will be notified via their online accounts. If selected, they can then proceed to file an H-1B Petition for their employee for that fiscal year.

Note: selections take place after the initial registration period closes, so there is no requirement to register on the day the initial registration period opens.

What happened during the FY 2022 H1B Cap Registration Process?

For FY 2022, USCIS received 308,613 H-1B registrations and initially selected 87,500 registrations projected as needed to reach the FY 2022 numerical allocations. On July 29, 2021, USCIS announced that it conducted a second selection of an additional 27,717 registrations. This resulted in a total of 115,217 selected registrations. The petition filing period based on registrations selected on July 28 began on August 2 and closed on November 3.

FY2022 H-1B Registration Process Timeline:

• March 2: Petitioners and registrants could begin creating H-1B registrant accounts at 12:00 noon Eastern Time.
• March 9: H-1B registration period opened at 12:00 noon Eastern Time.
• March 25: H-1B registration period closed at 12:00 noon Eastern Time.
• March 31: Date by which USCIS intended to notify selected registrants.
• April 1: The earliest date that FY 2022 H-1B cap-subject petitions could be filed.
• August 2: The earliest date that FY 2022 H-1B cap-subject petitions selected for the second filing period could be filed.

Compared to FY 2021:

• Number of Registered Companies Decreased by 8%
• Number of Registrations Increased by 13%
• Number of Selections Decreased by 7%

‍Predictions for FY2023 H-1B:

• The H-1B Lottery for FY 2023 will likely continue to be Random Selection via Electronic Filings

On September 15th, 2021, a California federal judge struck down a controversial Trump-era rule which aimed to change the H-1B lottery system from the current random selection process to one based upon prioritizing those with higher salaries.

• There will most likely be two rounds of lotteries for FY 2023 H-1B

USCIS has run two lotteries for the last two years. The split between the two rounds in 2020 (FY 2021) was 85% (lottery 1) and 15% (lottery 2), while it was 75% and 25% respectively in 2021 (FY 2022). Given the fact that the agency picked a higher number of registrations in 2021's second lottery, we think that the two-lottery process is here to stay. We might see a 75%:25% split between the two rounds next year as well.

• There will most likely be more submissions in FY 2023, and selection rates will continue to decrease as a result.

The H-1B quota continues to be oversubscribed, and last year saw a record number of H-1B registration submissions, which resulted in low selection rates.