By Dimo R. Michailov, Esq.|February 16th, 2017|Articles, F-1, H-1B, News, Students|

With the approaching H-1B cap filing season, one of the most common concerns we are hearing from both prospective H-1B employers and candidates is about the H-1B cap lottery and the fact that the random lottery does not provide a great chance of an H-1B application being selected for review.

Our office has handled thousands of H-1B applications and we have seen firsthand how cruel the H-1B cap lottery can be to both employers and to workers. Unfortunately, we have seen many highly-qualified and talented workers, many of them recent graduates of top universities, see their H-1B application rejected under the lottery and then struggle to find alternatives to remain in the US.

On the other hand, there are certain things that can be done to increase the chance that an H-1B candidate will see their application selected under the H-1B lottery and ultimately approved.   We would like to share some of our experiences.

Background of the H-1B Cap Lottery

The H-1B visa category was created in 1990 through the Nationality and Immigration Act of 1990 (INA).  Upon the creation of the H-1B visa type,  INA imposed a numerical limitation (“cap”) on the number of H-1Bs that could be issued in each fiscal year.  This “cap” (or quota) has varied over the past years but is set to 65,000 per year for FY2018 (fiscal year) starting on October 1, 2017.  As a result, each year, by law, USCIS can approve up to new 65,000 H-1Bs.

There are certain exceptions to the congressionally-mandated maximum of 65,000 H-1B visas per fiscal year.  The first 20,000 H-1B visas issued to alien workers who obtained their master’s degree or higher from a U.S. university are exempt from the 65,000 cap;  H-1B visas issued to such U.S. master degree or higher holders subsequent to the first 20,000 are then counted against the overall 65,000 cap.    Additionally, the cap does not apply to foreign nationals in the U.S. who are in lawful H-1B status and who are seeking to extend their visa or change employers.

Historical Chances of Selection by the H-1B Cap Lottery

Over the last several years, the chances of selection of a new cap H-1B application under the H-1B cap have been decreasing.

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Last year (FY2017) chance of success (236,000 applications)
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Chance of success for FY2016 (233,000 applications)

Last year (FY2017) there were 236,000 applications and the cap was reached over the first five days. This means that there was approximately 27% percent chance that an H-1B cap filing will be selected under the H-1B lottery. The chance for U.S. master’s degree or higher holders was slightly higher. Previously, in FY2016, there were 233,000 applications and the cap was also reached over the first five days of the filing season, for a lottery selection success rate of 27%.

This trend of increasing of H-1B cap filings, together with the improving economy in the United States, suggests that this year’s H-1B cap will also be oversubscribed even after only five filing days and will be subject to a random computer-generated lottery.

Ways to Increase the H-1B Cap Lottery Chances of Success

  1. Use US Master’s Degree or Higher

One of the most obvious ways is to try to take advantage of the 20,000 U.S. master’s degree or higher cap exemption. Doing so can boost the chance of selection by at least several percentage points, based on last year’s filings.

However, private for-profit universities’ degrees are not accepted and if the candidate has not officially graduated yet, all of the degree requirements (including thesis, if required) must be completed by the time the H-1B petition is filed on April 1. Also, the offered position must be one which is related to the master’s degree field of study.

  1. File Multiple Years

Mathematically speaking, filing for an H-1B cap in multiple years increases the overall chance of success under the H-1B cap lottery. We recommend that employers and candidates do not miss an opportunity to pursue an H-1B cap petition as early as possible – assuming the employer is willing to sponsor and assuming the candidate meets the eligibility requirements. We have seen (unfortunately, not just a few) cases where a H-1B cap case was not pursued early because “there would be more opportunities to do so in subsequent years” only to find out that such subsequent years’ H-1B petitions were not successful under the H-1B cap lottery.

For example, many F-1 OPT holders (and especially STEM graduates) often have multiple opportunities to file under the H-1B cap due to the fact that their OPT may be valid for 1 year which may cover two H-1B cap seasons (STEM graduates may get a chance to participate in at least one, and likely two more, H-1B cap seasons). This is also true for H-1B candidates who are still in school – there are other ways to build H-1B cap eligibility in order to file an H-1B petition early and to be able to have multiple years’ H-1B filings as backup options.

  1. Establish H-1B Cap Eligibility in Alternative and Creative Ways (In Order to be Able to Make Early and Multiple H-1B Filings)

Related to the suggestion to consider early H-1B cap filings, even when doing so may not be so obvious, there are ways to make H-1B cap eligibility cases when the candidate is still in school.

For example, many U.S. master’s degree students who may not have completed their master’s degree requirements may still be eligible for an H-1B cap filing based on their prior bachelor’s degree. The H-1B minimum requirements are that the position requires, at a minimum, a bachelor’s degree (or higher) and that the candidate has such degree.   Many master’s degree students already have a degree which may make them eligible for an H-1B even before the master’s degree is completed.

Similarly, an H-1B cap case may be build based on incomplete degree plus years of work experience.   The H-1B regulations permit an incomplete degree to be used – each missing year of education (from a four-year bachelor’s degree) can be substituted by three years of related work experience. As a result, many candidates who have work experience may be eligible for an H-1B cap case even if their bachelor’s degree is still incomplete.    Please see our article on filing H-1B cap before graduation for additional details.

  1. Job Offers with Multiple Employers

USCIS specifically prohibits multiple H-1B cap filings by the same employer on behalf of the same worker. But a qualified H-1B candidate can have bona fide job offers by more than one employer and can have multiple (different) employers seek to obtain cap H-1B approval on their behalf. Having a bona fide sponsorship by more than one employer also increases the chances of success under the H-1B cap lottery.

  1. File a Perfect Application

Last but not least, and stating the obvious, is  making sure to file a perfect H-1B cap application.   The H-1B filing is generally a fairly technical set of documents and using a qualified and attentive attorney is strongly recommended.  Yes, we are biased, but we have seen applicants hurt by poorly-prepared or late H-1B cap applications.    USCIS will reject any H-1B petitions filed at the incorrect service center, requesting incorrect H-1B employment dates,  with missing pages or signatures or filed too early or too late.    Needless to say, this is a one-time opportunity without a chance to correct a mistake or redo an application, so the margin of error is extremely small to none.

Conclusion

While we do not yet know for sure how many H-1B cap applications will be filed over the first five days of April this year, based on what we see in our office, the demand is higher than last year.   We urge our clients and readers to assume that the H-1B cap season will last only five days, that there will be a lottery and to aim for April 1, 2017 H-1B petition filing.

If you wish to start a new H-1B work visa petition under this year’s quota, or if our office can be of any help, please contact us as soon as possible.  Our attorneys and professionals stand ready to review your case, as part of our free initial consultation, and will help you prepare a strong H-1B application.