There are many U.S. visa options, practically from A to Z, including several different categories of temporary work visas, but for employers who seek highly skilled, educated, foreign national workers, the H-1B visa is by far the most popular. However, due to the statutory limits placed on issuance of new H-1B visas each fiscal year, businesses that want to take advantage of this option this year must be prepared to enter the annual H-1B visa lottery by submitting a petition to the U.S. Citizenship and Immigration Services ("USCIS") by March 31, 2009, for receipt on April 1, 2009.
Each year, employers can apply for new H-1B visas by filing a petition starting on April 1 for an October 1 H-1B start date. For the 2010 fiscal year, 65,000 H-1B visas (the "H-1B Cap") will be available for an estimated 150,000 petitions that may be received. Because of the high demand for new H-1B visas, petitions should be filed on April 1 to have any chance of being selected. An additional 20,000 H-1B visas will be available in a separate lottery, also on April 1, for foreign nationals with a Master's or higher degree earned in the U.S. ("Master's Cap").
In recent years, all H-1B Cap visas have been allocated within the first hours on the filing date, and Master's Cap visas soon thereafter. This pattern is expected to continue this year. Selection of successful petitioners is made by a computer generated random system from among the petitions received on April 1. Successful petitioners are notified of their selection with a Receipt Notice from the USCIS notifying them that their petitions have been received and are being processed to determine whether H-1B visas will be granted. Unsuccessful petitioners will have their petitions returned from USCIS along with their USCIS filing fee checks. This selection process is typically completed by the end of May.
Not all H-1B visa petitions are subject to the fiscal year cap. Employers of existing H-1B visa holders may generally file H-1B extension petitions for those employees, and new employers of foreign nationals who have H-1B status may generally file a change of employer petition without being subject to the fiscal year cap.
Further, the numerical cap does not apply to H-1B petitions made by institutions of higher education or their related nonprofit entities, by nonprofit research organizations, or by government research organizations. Thus, these "cap-exempt" institutions may file for new H-1B visa status for their foreign national employees at any time. However, H-1B visas issued under this exemption may not be transferred from a cap-exempt employer to a non-cap-exempt employer without being subject to the H-1B Cap.
The H-1B temporary visa classification is generally available to any organization that wishes to employ foreign nationals in any technical capacity (e.g., research scientists, engineers, systems or programmer analysts) or in any higher-level management or professional positions (e.g., CEOs, senior human resource managers, attorneys, accountants). The foreign national must have completed at least the equivalent of a U.S. bachelor's degree and the offered position must normally require this degree.
H-1B status is generally valid for an initial term of up to three years, and the status can be extended for up to an additional three years. H-1B status attaches to the foreign national employee, not the employer. Therefore, whether a foreign national employee works for one employer or many employers during the six-year period, the clock does not renew with each new employer. The H-1B holder's legal spouse and unmarried children under the age of 21 may obtain dependent H-4 visa status to coincide with the principal H-1B holder's period of authorization; however, H-4 dependents are not permitted to work in the U.S.
Although six years is generally the maximum term for an H-1B visa, it is sometimes possible to extend H-1B status in increments of one or three years past the sixth year if a foreign national is in the appropriate stage of the U.S. permanent residence process.
Entering the H-1B lottery offers no guarantees; even with an April 1 filing, issuance of an H-1B visa is far from certain. However, with limited options available for employers who rely on foreign national knowledge workers, there is often no choice but to play the H-1B lottery.