The H1-B visa is for professionals – generally bachelor’s (or higher) degree holders and is limited to 65,000 visas worldwide per year, with an additional 20,000 visas for U.S. master’s degree holders, who, in effect, get two bites at the visa lottery cherry (see below). The total quota of 85,000 visas per annum worldwide has, for many years, been woefully short of demand.

The opening date for filing H1B visa petitions is April 1st each year, for a work start date – six months later – of October 1. However, in 2020, a new electronic registration system was introduced for all H-1B cap-subject petitions for FY 2021, allowing applicants to pre-register online during March, with a computer-generated lottery held when the registration period ends (2 – 3 weeks later) and those lucky ‘winners’ of the H-1B lottery are informed. Only those applicants chosen in the lottery may file a petition for H-1B visa from April on. Compared to the time and therefore cost that goes into preparing and filing a petition, the information required for pre-registration is minimal, saving those applicants who don’t win the lottery from this expense. However, to enter the lottery, an applicant must be confident that if they’re chosen, their petition is approvable, objectively speaking, and that the employer will go ahead with filing it. In the event an applicant is chosen, and the petitioner/employer does not file a petition, an audit may result.

For FY 2022 cap-subject petitions, the same system of pre-registration during March 2021 will apply, the registration period opening on March 9th, 2021, and closing on March 25, 2021.

For many years, the H-1B quota has been exceeded and it continues to be a matter of luck whether for any applicant to ‘win’ the lottery so their petition can be filed.  

To be eligible to file a petition, the applicant must have a US professional job offer (one which requires a degree in a relevant field). In addition, the employer must be prepared to pay the prevailing wage which US DOL has set for the position and be willing to wait until October 1 (all going well with lottery, and an approved petition) for the applicant to begin working. If an applicant is in the US, they must be in lawful immigration status (cap-gap rules may apply) throughout.

Employees of institutions of higher education or a related or affiliated non-profit entity, as well as those employed, or who will be employed, by a non-profit research organization or a governmental research organization are exempt from the cap.

Finally, despite the bad press the H-1B visa category so often receives, and never more than during the Trump era, the need and desire of US employers to hire foreign professional workers continues unabated. 

OBA Law Office Limited t/a O'Brien And Associates • Registered in Ireland: 541466 • Registered Office: As Above

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