H-1B Lottery Season – A Refresher on Eligibility Requirements and Employer Obligations

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The H-1B lottery is fast approaching and set to run from March 6 through 22 this year. Whether this is your company’s first time to participate in the H-1B lottery or you are a seasoned pro, now is the ideal time to evaluate your foreign national talent and brush up on the fundamentals underlying the process.   

• Who should I enter in the H-1B lottery? The H-1B is suited for foreign nationals working in a “specialty occupation.” This means the job requires: (1) theoretical and practical application of a body of highly specialized knowledge; and (2) attainment of a bachelor's or higher degree (or equivalent) in the specific specialty as a minimum for entry into the occupation. To illustrate, a software developer position requiring a bachelor’s degree in computer science, electrical engineering or a closely-related field would satisfy the H-1B criteria, whereas a marketing job that requires a bachelor’s degree in any field may not.

After identifying appropriate jobs for the H-1B lottery, review your roster of employees for foreign nationals with limited or expiring work authorization. Most often, this will include foreign nationals in F-1 student status who recently graduated from a college or university and are working for the company under Optional Practical Training (OPT) or STEM OPT. Although OPT is valid for one year and STEM OPT is valid for two years, it is critical to enter these foreign national employees in the H-1B lottery well before their work authorization expires. Last year approximately 781,000 applicants entered the H-1B lottery vying for a total of 85,000 available visas (with 20,000 of those only available to those who have a U.S. master’s degree or higher). Given the low odds of being selected, many foreign nationals have to enter the H-1B lottery several years in a row before they are ultimately picked.

• When are the H-1B lottery dates and what are the logistics? The United States Citizenship and Immigration Services (USCIS) has announced that the H-1B lottery opens on March 6, 2024 at noon Eastern and closes on March 22, 2024 at noon Eastern. Foreign nationals cannot enter themselves in the H-1B lottery, so the employer must first create a myUSCIS account to submit its entries or allow its legal representative to submit entries on its behalf. The online registration form requests a limited amount of information regarding the foreign national, including full legal name, gender, date of birth, country of citizenship, passport number and whether the employee has a master’s or higher degree from a U.S. college or university. There is a $10 entry fee per employee, and USCIS has historically notified employers regarding their successful H-1B applicants starting late March into early April.  

• What happens to employees selected in the H-1B lottery? After being selected in the lottery, the employer then has 90 days to submit the complete application packet to USCIS. This packet will include a certified Labor Condition Application, Form I-129 and its applicable H-1B supplement pages and an employer support letter describing the specialty occupation job, its minimum requirements and the foreign national’s qualifications for the job. The application packet will also include relevant supporting documentation regarding the foreign national employee, including passports, prior visas, degrees and academic transcripts. All employers must be sure to include the appropriate USCIS filing fees for $780 (I-129 fee) and $500 (Anti-Fraud fee). Additionally, employers with 26 or more full-time employees in the U.S. must pay a $1,500 American Competitiveness and Workforce Improvement Act (ACWIA) fee and a $600 Asylum Program fee. Employers with 25 or less full-time employees in the U.S. must pay a $750 ACWIA fee and a $300 Asylum Program fee. There is an additional, optional fee of $2,805 for premium processing, which ensures a decision from USCIS on the H-1B case within 15 calendar days. Without premium processing, it is typical for the H-1B case to remain pending with USCIS for several months.

If the H-1B application packet is approved by USCIS, the foreign national employee can have H-1B status for up to three years, and that status can be extended for an additional three-year period (without having to enter the H-1B lottery again). To extend the status beyond the six-year H-1B maximum stay, the employer must sponsor the foreign national employee for lawful permanent residence.    

• What are the employer’s obligations to H-1B employees? The employer must pay H-1B employees the actual wage or the prevailing wage for the position, whichever is higher. The actual wage is the wage that a company normally pays to similarly situated employees. The prevailing wage rate is defined as the average wage paid to similarly employed workers in a specific occupation in the area of intended employment. One of the most commonly-used ways of gathering prevailing wage data is through the Foreign Labor Certification Data Center website. The employer’s wage obligations to H-1B employees continue throughout the entire period of H-1B employment.

Employers are also obligated to offer to pay the reasonable costs of return transportation to the foreign national employee’s home country if the employer terminates employment before the end of the H-1B period of stay. Such costs include a one-way airline ticket to the foreign national employee’s home country, but the employer is not obligated to incur any costs related to transporting the employee’s personal items or any return costs related to the foreign national’s dependents. If the employee decides to remain in the U.S. after termination and either change to another nonimmigrant status or find another employer for H-1B sponsorship, the present employer is not required to pay the reasonable costs of return.    

For additional information about the H-1B lottery or other topics relating to global employment and immigration, contact any member of Maynard Nexsen’s immigration team.