Law Offices of Stuart J. Reich, PLLC

Practice Limited to Immigration & Nationality Law

11 Broadway, Suite 615
New York, NY 10004

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What can I do to improve my chances in the H-1B lottery?

Q: The odds of getting chosen for an available H-1B under the cap aren’t that great – is there anything I can do to improve my chances of getting hosen/winning the H-1B lottery?

A: There are things you can do and things you can’t – we’ll talk about both.

Of course, the only way to avoid the H-1B lottery entirely (assuming no alternative visa to an H-1B is available) is to get a job with a cap-exempt employer – one who can petition outside of the cap entirely because they are an institution of higher education, a non-profit affiliated with an institution of higher education (not just any non-profit can be cap-exempt), or a nonprofit or governmental research institution (not simply a research institution, but one that is nonprofit or government-affiliated).

Q: What can’t you do to try to improve chances for selection in the H-1B lottery?

A: What you aren’t permitted to do is file multiple petitions with the same or a related employer – the same employer cannot file more than one petition for the same potential employee…even if the jobs are dissimilar. USCIS has made clear that they will deny or revoke multiple or duplicative petitions filed by an employer for the same H-1B worker and will not refund the filing fees.”

Further, once a case is selected in the lottery for adjudication, it still needs to be an approvable case – the job described still needs to be a “Specialty Occupation” that requires at least a Bachelor’s-level degree or the equivalent in a specific field (or narrow range of fields), and the beneficiary (the potential employee) needs to have a Bachelor’s degree or the equivalent in that field or narrow range of fields.

There may not be too many different jobs that the employer would be willing to potentially offer the individual which require that same degree possessed by the potential employee – at least not with a required wage acceptable to all parties.

Q: So, what can you actually do – safely – to increase the chances of getting picked in the H-1B lottery?

A: Unfortunately, the currently guidelines – while understandably trying to limit the ability of employers and employees to game the system – end up encouraging employers and employees to game each other.

While duplicate petitions by an employer for the same employee for the same job are prohibited and get weeded out by USCIS, no provision of immigration law prevents an employee from accepting multiple job offers – or an employer from offering the same job to multiple candidates - and petitioning for each of them.

An employee can simply take the job with the H-1B selected in the lottery (or if multiple petitions are selected, quit the less preferred job leaving the employer out substantial fees and the rest of the field with a wasted H-1B number).

The employer – if only one case is selected – ends up with the luckiest of its candidates even if he or she wasn’t the first choice. True, the employer may end up with multiple selected and approved petitions, and need to find a way to cope. Large employers may simply take all selected candidates, or perhaps amend the H-1B of the selected candidate to a different H-1B position for which they qualify.

Q: Will filing a cap-subject H-1B under premium processing help my chances for selection?

A: No. Paying the additional fee for premium processing - where this is even available (USCIS will often suspend premium processing for cap-subject H-1Bs and/or other types of H-1Bs for limited periods) - has no bearing on a cases likelihood of being selected under the lottery system.

When available, what paying for premium processing will do is provide a faster answer to the question of whether a cap-subject case has been selected – USCIS inputs data and generates Receipt Notices for these cases first.

Most likely there would also be news of an adjudication (hopefully an approval) earlier than for a non-premium processing case also selected in the lottery – but the start date of the petition will be no earlier than next October 1 in any event. So, premium processing doesn’t add any benefit in terms of starting work earlier - or event traveling earlier (leaving before the H-1B takes effect on October 1 abandons the request to change status, and requires another trip later to obtain the H-1B stamp and reenter for the person to actually be on the H-1B).

Contact us here to arrange a consultation, to inquire about retaining us to handle your immigration matter, or simply to suggest topics you would like to see covered on our site.

The above is presented for informational purposes only, and does not constitute legal advice or create an attorney-client relationship with our firm. The information provided should not be used as guidance in pursuing an immigration matter absent consultation with a qualified immigration attorney.