A History of the H-1B Visa Filing Season & Lottery

Its April which, in addition to April Fools Day and April Showers there is what fellow immigration lawyers call the H-1B visa Filing Season which ironically begins on April 1st and what has become known as the H-1B Visa Lottery.

Our story starts way back in the mid-1990s when I started my career in US immigration law. It was amagical time when there were as many H-1B visas as you would need (well, at least 120,000). It seemed like there were an infinite number of H-1B visas because they just never ran out. A newly graduated Computer Science bachelors degree holder was a hot commodity back then. It was great hearing from these ambitious young graduates because we could actually give them an option for a visa to work in the US as soon as possible. The only problem would be when theyd call back and say theyve been offered a new job with a higher salary. The dream ended in the early 2000s with a cap on new H-1B visas was almost halved to 65,000 first time H-1B visas each year.

The April 1st date comes from the fact that the US governments fiscal year begins on October 1st which is the date the new batch of H-1B visas becomes available. The H-1B process requires that the employer obtain an approved H-1B petition for its new employee from the US Citizenship & Immigration Services (USCIS). Each time an H-1B petition is filed an H-1B visa number is taken up.

The earliest an employer can file an H-1B petition is six months before the start date of the visa which for first time applicants that would be April 1st. For the first few years after the H-1B cap was reduced, the cap was reached several months after April 1st but around 2006 or 2007 the cap was reached exactly on April 1st with as many as 120,000 petitions filed.Thus was born the H-1B Lottery because a lottery system was created to determine out of all the petitions received who assigned an H-1B visa.

Luckily the cap does not apply to renewals of H-1B visas but it does affect those who have never held an H-1B in the past such as foreign students completing a degree in the US. What resulted was a sad state of affairs when a newly graduated student could have a bumpy road to employment in the US because their status might expire before the October 1st start date. What were these highly educated ambitious workers going to go? Anywhere else that would offer them a job and a visa, places like London or Canada.

In addition, it made it really difficult for immigration lawyers because we could only give our best estimate of when we thought the cap would be reached. Even if the cap is reached after the petition is filed with the USCIS, the employer still has to pay the legal fees for the preparation of the petition because all the work will be done.

The H-1B lottery has had its ups and downs. After the Credit Crunch began in September 2008, the 2009 H-1B cap was slow to be reached. In the last couple of years the cap has been reached sooner than it has been recently in recent years which could be evidence of job growth.

Employers who sponsor foreign workers on the H-1B visa are not doing it flippantly. Under DOL rules, the employer must pay all the expenses involved, including the US governments filing fees and the lawyers fees, in obtaining the employees H-1B visa and the employer may not be reimbursed from the employees salary. Why would an employer pay several thousand dollars in lawyers legal fees and government filing fees to hire a foreign worker if they can find an American worker to do the same job? All employers Ive worked with in recent years are cutting back on expenses yet they are still employing H-1B workers. This can only mean that there highly skilled foreign workers are still needed in the US to keep the economy moving.