By Louanni Cesario and Ana Laura Castro
The H1B visa is aimed at foreign professionals, more specifically, aimed at a specialized workforce which is not easily found in the USA, that is, graduated professionals with very specific experience in their field. In order to fit the term of specialized labor, which characterizes the H1B visa, the professional must have the necessary training and skills to apply their knowledge theoretically and practically when exercising the offered position and hold a bachelor’s degree or a diploma of higher level related to the activities to be developed in this position so that, in this sense, the Labor Department understands that this professional is able to perform the activities described in the vacancy.
During the visa application process, it is necessary to prove that the position which is destined for the foreigner was offered to professionals in the USA, but, these candidates did not possess the necessary qualifications to practice the position. It should be noted that an American company must sponsor the visa application before USCIS as Sponsor.
The number of H1B visas available per fiscal year is limited by a CAP number of 85,000 visas, 20,000 of which are reserved for people with a master’s or doctorate degree held in the United States. Another interesting fact related to the H1B visa is that the fiscal year ends on September 30 of each year and starts on October 1 of the same year.
The H1B lottery in the past
Prior to the year 2020, employers were required to submit complete petitions containing the H1B application on April 1st. After the petition submission period, USCIS, the American government agency responsible for immigration into the country, would conduct the lottery, which can also be called a raffle. Among all submitted petitions, only those drawn in the lottery would be accepted and processed by USCIS. Therefore, it should be noted that all the preparatory work for the visa submission should be done by April 1st and there was a risk that the petition would not even be analyzed if it were not drawn.
The new H1B lottery
According to a decision published in 2019, the H1B lottery was completely changed. Currently, the new lottery is preceded by an Electronic Pre-Registration process that must be done through an account on the server of USCIS, the American immigration agency. This Electronic Pre-Registration must be carried out in a specific period and prior to the draw. In this case, all applicants who wish to participate in the lottery must be registered on the website and pre-register.
At that time, it will be necessary to pay a fee that is currently in the amount of US $ 10.00 per applying professional and provide information about the company and the Beneficiary. After the lottery, which takes place in March, if the professional is eventually selected, employers from the selected registries will then submit their petitions to USCIS for processing along with the appropriate registration fees and supporting documentation within 90 days or according to the deadlines established by USCIS. If the petition is approved, the H-1B visa will be issued and the beneficiary’s start date will be October 1 of the same year. In addition, it is possible that in the second semester, before October 1st, professionals not previously selected in the draw may be selected to take the place of those who were previously selected, but had their petition denied or did not submit their visa application.
USCIS believes that the new electronic pre-registration system for the H1B lottery should reduce the overall cost for petitioners and USCIS itself, while also reducing the administrative burden for the agency that, in the past, should have handled physical packages of thousands of petitions that could not be selected or analyzed. In addition, each sponsoring company can send only one registration per professional during the Electronic Pre-Registration.
If a single sponsor sends more than one registration for the same beneficiary, all records sent by that company for this professional will be considered invalid and will be denied. In this way, the chances of fraud are minimized.
Finally, to review, the application process for the H1B visa has started to take place in two phases, the Electronic Pre-Registration phase and the post-draw or lottery phase. The visa, as a rule, is valid for a maximum of 3 years, remembering that this determination is at the discretion of the immigration agent who will evaluate the petition. In addition, family members of those who have an H1B visa can accompany them with H4 status.