Ivener & Fullmer LLP

H-1B Powerball?


Last month the country was in a frenzy when the Powerball Lottery jackpot reached $1.6 billion and thousands of people throughout the country lined up at gas stations and convenience stores to spend whatever spare money they could spare for a chance at a life of riches.

How strange it must to observers from overseas that the United States decides who gets H-1B visas with a lottery system as well. This is NOT the Diversity Lottery, or “Green Card” lottery which were each established to diversify the immigrant population through a lottery process. The H-1B program allots visas to professional workers in highly skilled provisional occupations. The visa petitions can only be filed by employers, many of which are in industries such as high tech, energy, health care or professional services (accounting firms, law firms or consulting firms). These employers generally pay between $1,500 and $3,500 in government filing fees and must pledge to provide the foreign workers the same wages and working conditions as US workers.

Congress has allocated 65,000 slots for new H-1B workers each year plus another 20,000 for individuals with US masters degrees, for a total of 85,000 new H-1B’s each year. Individuals may start working on these new visas as early as October 1st of a given year. Each year petitions for these 85,000 visas may be filed as early as April 1st and the government will collect applications for at least the first week in April. Last year approximately three times the allotted number of H-1Bs were filed during the acceptance period. The unselected applications were returned unprocessed to the employer.

While there is nothing that an employer can do to increase the odds of being selected in the lottery, there are several things that can be done to increase the chances of approval, assuming that a petition is selected:

  1. Hire an immigration attorney with experience filing H-1Bs. I have seen numerous H-1B petitions prepared by other attorneys that were denied, but could have been approved if prepared properly;
  2. Start the process early, do not wait until the last minute;
  3. File the LCA early. This will result in a shortened 3 year period, but will also result in the ability to have the H-1B packet completed well before the filing deadline. 
  4. File with premium processing. This will not change the October 1st start date, but it will expedite the issuance of a request for evidence (RFE), allowing an employer to quickly and proactively respond to any requests for additional evidence that the government may have;
  5. Avoid the lottery completely by hiring lateral H-1B workers who were previously employed by other companies, and who are not subject to the H-1B cap; 
  6. Consider H-1B alternatives such as the TN visa for Canadians or Mexicans, the E-3 visa for Australians or the H-1B1 visa for individuals from Singapore or Chile.

Congress should increase the number of H-1B’s so that visas for professionals are not awarded like the winners of the Powerball Lottery.  However until that time, employers can maximize their chances of success by following the steps outlined above.  

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Ivener & Fullmer LLP, a nationally recognized law firm, has successfully assisted hundreds of clients in immigration matters.

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