Winning the Visa Lottery: What You Need to Know for the 2016 H-1B Cap Season

Authored by Diane E. Metzger

Jan 19, 2016

Looking for a lottery with greater societal impact and better chances than the Powerball? It’s the H-1B visa lottery, and on April 1st many high-skilled foreign nationals will be dreaming of their chance to be selected to receive one of the 85,000 H-1B work visas available for this government fiscal year.

Unlike Powerball, there are ways to improve the odds of winning one of this year’s coveted 85,000 H-1B work visas. If you are an employer of foreign nationals in F-1, TN, L-1 or other visa statuses, or if you wish to hire a foreign national currently working abroad, here are some tips on how to improve your chances this H-1 cap season:

  1. Plan now for the April 1st Filing Deadline: The first day the United States Citizenship and Immigration Services (“USCIS”) will accept H-1B cap-subject petitions is April 1, 2016. In order to have your application properly prepared and received by USCIS on April 1st (or within the first five (5) business days during which USCIS will accept H-1B cap-subject petitions if a lottery is triggered), employers must work with your immigration counsel NOW to identify employees who may require H-1B visa sponsorship and gather the necessary documents to timely prepare the H-1B application.
  2. Properly Identify H-1B Master’s Cap Applications: Approximately 65,000 of the 85,000 H-1B visas available each fiscal year are slotted for the “regular” cap, while 20,000 H-1B visas are specifically reserved for foreign workers holding a U.S. Master’s degree from an accredited institution (the “Master’s cap”). USCIS conducts a computerized lottery of the Master’s cap first, and any individuals not selected in the Master’s cap will fall into the selection pool for the “regular” cap. If eligible, properly identifying and marking your H-1B application as a “Master’s cap” application can help your employee get two bites at the H-1B apple. 
  3. File for OPT Work Authorization, if available: Some F-1 (student) visa workers may be eligible for OPT work authorization or OPT STEM work authorization. If your employees are eligible for OPT work authorization, they should timely apply for such authorization (or to extend such work authorization) in the event that their H-1B application is not selected in the H-1B lottery.

Now, back to the numbers. What are the chances of obtaining an H-1B visa for your high-skilled worker? Definitely better than the Powerball. However, the reality is that in the past few years, more H-1B cap applications have been received than there are visas available, thus triggering the “H-1B Lottery,” an automated computerized matrix system employed by USCIS to randomly select a sufficient number of receipted H-1B petitions to fill the fiscal year’s visa quota.

Last year, USCIS received nearly 233,000 H-1B cap petitions, each vying for one of the 85,000 coveted H-1B visa slots available. It is anticipated that this year will once again produce a very high number of H-1B cap filings, so an H-1B Lottery for this year is a safe bet.

Despite the increase in filings, the odds of receiving an H-1B visa are often still high enough to justify an employer’s efforts for the chance to keep or retain a high-skilled employee. But just like the lottery, if you don’t play you can’t win…and if you don’t file on time, you will not even get a chance to receive this very important work visa. Since the price of not playing in this “lottery” may cost employers the opportunity to employ a key worker, employers who are considering sponsoring an employee for an H-1B visa should take immediate action to ensure that any necessary H-1B cap applications can be timely and properly prepared and filed.

If you have any questions about H-1B visas or any other business immigration matter, please feel free to contact Diane Metzger.

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