The following article was first published by Shipman & Goodwin LLP in its Employment Law Letter. It is reposted here with permission.
In recent years, the demand by U.S. employers for H-1B visas has outstripped the supply.
This is particularly evident in the manufacturing industry, where there is an immediate need for skilled workers in certain specialty occupations.
U.S. employers must pay H-1B workers the prevailing wage for their occupations in their geographical area.
Generally, a foreign worker may be admitted in the H-1B classification for a maximum of six years, with the U.S. employer initially petitioning for a validity period of up to three years.
The H-1B visa category is for temporary (“non-immigrant”) employment for foreign professionals in “specialty occupations” that require at least a job-related bachelor’s degree or the equivalent.
Qualifying professional occupations typically include engineers, chemists, computer systems analysts, computer software developers, researchers, and budget and data analysts.
During each fiscal year of the U.S. Government, which starts Oct. 1, there is an annual statutory limit of 65,000 available H-1B visas, and 20,000 additional visas for foreign professionals who graduate with a master’s or doctorate degree from a U.S. educational institution.
Accordingly, the U.S. Citizenship and Immigration Service has implemented a lottery process, known as the cap lottery, for awarding the limited number of H-1B visas available.
The H-1B Cap Lottery
The cap lottery is a two-step process with the USCIS lottery registration and selection of foreign workers comprising the first step, and the preparation and filing with USCIS of an H-1B petition on behalf of the foreign professionals whose registrations are selected in the lottery comprising the second.
As no information regarding the position offered to the foreign national is provided to USCIS as part of the lottery registration process, it is inexpensive, and sponsoring U.S. manufacturers need only incur the effort and additional expense of preparing and filing an H-1B petition for those foreign workers who are lottery winners.
USCIS announced Jan. 28 that the registration period for the fiscal 2023 lottery begins at noon, Mar. 1, 2022 and runs through noon Mar. 18, 2022. USCIS will select the 85,000 lottery winners at the end of March.
Manufacturers will then have a 90-day window to prepare and file H-1B petitions for the foreign workers whose registrations were selected in the lottery.
Foreign national professionals whose registrations are selected in this years’ cap lottery and whose H-1B petitions are ultimately approved by USCIS will have a start date of no earlier than Oct. 1, 2022.
Preparing for the Lottery
Manufacturers who wish to enter foreign workers in the upcoming H-1B cap lottery should begin the process as soon as possible.
While the lottery registration period begins in March, now is the time to prepare.
First, manufacturers should work with their hiring managers and experienced immigration counsel to determine whether the offered positions qualify as a “specialty occupation,” to determine the minimum or “prevailing wage” that must be paid to H-1B workers in those identified positions, and to select the foreign worker candidates they wish to sponsor for the fiscal 2023 lottery registration.
Manufacturers should also work with legal counsel to assess the sponsored foreign national’s current immigration status to ensure their eligibility for an H-1B visa and to collect their personal biographical information for the lottery registration.
Finally, manufacturers who are new to the H-1B cap lottery will need to create an online account on the USCIS lottery registration website and provide legal counsel with basic information about the sponsoring organization, including its legal name and Employer Identification Number.
Additional Labor Resources
During this significant U.S. labor shortage, as an additional resource for employing qualified professional, skilled and non-skilled workers, manufacturers should also consider other options for hiring foreign nationals, such as:
- Sponsoring foreign nationals who are already working for them abroad, either for a parent/affiliate company or a foreign subsidiary in an executive, managerial or specialized knowledge position, for the L-1A or L-1B intracompany transferee visa;
- Sponsoring Canadian and Mexican professionals who qualify for a TN visa
- Employing foreign students who have recently completed or who will soon complete courses of study on an F-1 visa at a U.S. college or university and have an ensuing one- or three-year period of optional practical training in the U.S. available to them;
- Hiring foreign workers with a valid Employment Authorization Document available to them as accompanying dependents of a principal visa holder (ex. employees in H-4, L-2, or E-3D visa status) or as refugees or asylum seekers.
Next Steps for Manufacturers
Given the relative ease and low cost of sponsoring a foreign national for the H-1B cap lottery, and coupled with the ongoing shortage of available and qualified U.S. workers, manufacturers should consider using the H-1B visa as a tool for recruiting highly skilled professional workers who bring innovative ideas and in-demand knowledge of the latest manufacturing trends and processes to the job.
As the March registration period for the FY 2023 cap lottery is quickly approaching, manufacturers who are interested in learning more about the H-1B cap lottery and visa process should contact experienced immigration counsel immediately.
About the authors: Brenda Eckert is a partner at Shipman & Goodwin LLP and head of the immigration law practice. Bradley Harper is an associate at Shipman & Goodwin LLP practicing in immigration and employment law. Eckert and Harper assist manufacturers to recruit, hire, and retain top international talent in an increasingly competitive labor market.