Blog / February 5, 2020

The H-1B Lottery in 2020: What’s Changing and How To Apply

Sid Chary

Every year towards the end of March, United States Citizenship and Immigration Services (USCIS) holds a visa lottery for companies that wish to hire a foreign worker on an H-1B visa. This visa allows US companies to hire foreign workers on a temporary basis, and the selection lottery to obtain one is known as the “H-1B lottery.” In 2020, the H-1B lottery undergoes a slight but important change. While the numbers of available slots remain the same as in previous years, the process for applying for an H-1B visa now requires much less upfront paperwork and cost. Instead of applying to the lottery with a fee and lengthy application, H-1B lottery applicants in 2020 will first need to register through an online registration system and pay a $10.00 fee (plus any applicable attorney costs). After the employer is notified that they have been selected in the lottery, they will need to work with their attorney to submit the entire H-1B petition along with applicable filing fees. Prior to this year, hundreds of thousands of employers would incur upfront attorney fees and would have to budget thousands of dollars for USCIS filing fees prior to the USCIS issuing a decision on those H-1B petitions that would be selected in the lottery for review. For applications selected in the lottery, USCIS would cash the filing fees (ranging from $1,710 to $3,900) and then proceed to review the H-1B petition. If the application was not chosen, USCIS would return the filing fees. In either event, H-1B sponsors (the employer) used to be out thousands of dollars for a period of months. For this year’s H-1B lottery, USCIS is hoping the new system will streamline the process on their end and reduce up-front costs and paperwork for potential employers. USCIS’ $10 registration fee, which—combined with the nominal cost of retaining a lawyer or law firm—adds up to a much more reasonable cost to apply for an H-1B visa. Read on for more details about how to apply for an H-1B visa.

H-1B Eligibility

General requirements for an H-1B potential employee (beneficiary):

Have completed a US bachelor’s or higher degree required by the specific specialty occupation from an accredited college or university; or
Hold a foreign degree that is the equivalent to a US bachelor’s or higher degree in the specialty occupation; or
Hold an unrestricted state license, registration, or certification which authorizes you to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment; or
Have education, training, or progressively responsible experience in the specialty that is equivalent to the completion of such a degree, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.

General requirements for an H-1B specialty occupation (the job being offered to the applicant by the company):

Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position; or
The degree requirement for the job is common to the industry or the job is so complex or unique that it can be performed only by an individual with a degree; or
The employer normally requires a degree or its equivalent for the position; or
The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.

Once you’ve decided that a job is available within your organization, the potential employee qualifies, and you’re ready to file for the H-1B visa lottery, you will need to understand the process.

Basics of the H-1B Visa Lottery

The H-1B cap is split into two categories: master’s cap and regular (bachelor’s) cap. The master’s cap is reserved for those applicants who hold a US (or equivalent) master’s degree and the regular cap is reserved for those applicants who hold a US (or equivalent) bachelor’s degree. There is a numerical limit for both categories. This is how it works:

Registration period from March 01, 2020 – March 20, 2020.
Total of 85,000 H-1B visa spots for both master’s degree (or equivalent) and bachelor’s degree (or equivalent) applicants.
Random Lottery 1: 65,000 application entries will be selected (all applications) – this is it for the regular cap.
Random Lottery 2: Unselected US master’s degree holders (from the first lottery) will be placed in the balance of the 20,000 lottery pool and this is reserved exclusively for master’s degree holders.

One registration per potential employee per company is permitted, with no duplicate entries. If a company has multiple EINs and there are two different jobs, representing a legitimate business need, this is permissible. There is a waitlist for all registrations, but judging from historical numbers, this won’t be available or used.

What You Need to Register

Company Info: Legal Name, EIN, US Office Address, Name and Contact Info of the authorized signatory.
Applicant (Beneficiary) Info: Legal Name, Gender, Education, Birthday, Country of Birth, Country of Citizenship and Passport Number.

If your company uses an attorney, you will need to have Form G-28 (attorney representation form) on file. Note that at this point in the process, you will not yet need position information such as job title, job description, salary info, etc.

After Selection in the H-1B Lottery

If your application was selected in the lottery… what’s next? Well, here’s the problem: USCIS has never done this before. There may be delays, but here are estimates for projected timelines:

Lottery Application Period: March 01, 2020 – March 20, 2020.
Application Selected and USCIS will notify Company or Attorney via mail and/or electronically (projected notice date of March 31, 2020).
Company or Attorney will have at least 90 days to complete and submit the H-1B petition and fees to USCIS for review and decision-making.
If the H-1B petition is approved, the beneficiary can begin employment on October 1 (the government’s fiscal year beginning), 2020 for an initial period of three years and will be renewable for another three years.

H-1B 2020 FAQs

If I’m completing a masters or undergraduate degree in May, can I apply for an H-1B?

Yes, assuming you meet the other degree requirements. USCIS noted that the “[F]inal rule does not alter the general requirement for establishing eligibility at the time the petition is filed.… Eligibility for H-1B classification does not need to be demonstrated at the time a registration is submitted.”

Who pays the H-1B application fees?

As a general rule, the company pays the applicant’s attorney and registration fees. By law, some fees cannot be paid for the employee. Our office generally recommends the employer pay all fees associated with the H-1B application.

Does the applicant need to be in the US to apply for an H-1B?

No.

Can I sponsor myself or apply for an H-1B visa by myself?

Self-employment for H-1B applicants is not permitted; in fact, the applicant/employer has to establish several requirements. This will need to be discussed in length with an attorney to establish eligibility.

Are there alternatives to an H-1B?

Yes, there are many different options. Contact our office to discuss the options. If you are interested in learning about the H-1B process we recommend contacting Sid Chary Esq. for more information at [email protected] or www.charylaw.com Attorney Advertising.