There are U.S. visa options ranging literally 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 must be prepared to enter the annual H-1B visa lottery.  

Each year, new H-1B visas may be applied for by filing a petition starting on April 1 for an October 1 employment start date. For the 2010 fiscal year, 65,000 (the “H-1B Cap”) H-1B visas will be available, while an estimated 150,000 petitions will be received. Because of the high demand for new H- 1B visas, petitions must 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 held 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 few hours on the filing date, and the Master’s Cap visas soon thereafter. This pattern is expected to continue on April 1, 2009. Selection of successful applicants from among the petitions received on April 1 is made by a computer-generated random system. Successful applicants are informed of their selection via a Receipt Notice from the U.S. Citizenship and Immigration Services (“USCIS”) notifying the employer that the petition has been received and is being processed in order to determine if an H-1B visa will be granted. Unsuccessful applicants will have their petitions returned from USCIS along with their USCIS filing fee checks. The 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 file H-1B extension petitions for their employees, and new employers of foreign nationals who have H-1B status may apply for change of employer status 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 governmental 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 program 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. awarded bachelor 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 that coincides with the principal H-1B holder’s period of authorization; however, H-4 dependents are not permitted to work in the United States.  

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 no choice but to play the H-1B lottery.

Due to the complexity and time-sensitive nature of the process, employers typically seek immigration counsel for assistance. The legal fees for this process are generally billed on a flat project fee basis.