H1B Lottery at Small Companies: Key Considerations and Risk Responses

Many employees at small and medium-sized companies worry when participating in the H1B lottery: could factors such as the company's small size and lack of lottery experience affect their H1B lottery? Based on the author's records, this article compiles several questions commonly raised by employees at small companies and summarizes key considerations for the H1B lottery at small companies, hoping to provide some suggestions and reference for employees at small and medium-sized companies preparing for the H1B lottery.

Confirm Lottery and Application Deadlines with the Company (Applicable to Companies of All Sizes)

Many companies' HR often say before onboarding: "We'll decide on H-1B based on performance, but don't worry, as long as you perform well, there's a chance." I've seen too many people happily join and work hard after hearing this, only to receive an HR message: "Sorry, you don't have a chance this year." This is especially devastating for liberal arts students with only one year of OPT. Therefore, February is a crucial time—be sure to reconfirm with HR that you can enter the lottery. If you really encounter a situation where sponsorship was promised but then reneged, I suggest escalating while considering a job change.

A friend of mine encountered a situation where the company suddenly reneged and said they couldn't enter the lottery. She had no time to find a new company, so she escalated level by level. The process was troublesome, but the result was good—the manager finally said it was a communication problem that caused a misunderstanding, and she could actually enter the lottery, and she successfully won. I suggest escalating first in such situations, and only consider job change if that doesn't work.

Regarding the H-1B application deadline, companies usually have an internal deadline in their system, typically from mid-January to early March. This year's registration deadline is March 17 (Eastern Time). Ask your manager and HR in advance and submit your application before the deadline. Such deadlines are usually not public, so don't wait for an email notification—be proactive and ask.

Monitor Every Step of the Application Yourself

Small companies, especially those just starting to sponsor H-1B, often have the obvious problem of being unfamiliar with the entire process, so the applicant needs to monitor constantly. A colleague's previous company was like this: the boss was nice and agreed to support H-1B, but because it was the first time sponsoring an employee, there was no lawyer and no experience, so my colleague had to oversee everything. From finding a lawyer to confirm the timeline and documents early on, to paying fees after being selected later, she had to do it all herself. Even with experienced companies, if the boss doesn't have a regular lawyer, you should still keep an eye on things and follow up constantly.

In such situations, I suggest discussing with the boss and communicating directly with the lawyer yourself, which can also be seen as reducing the boss's burden.

Most Common Risks of Lottery at Small Companies and Responses

First, to clarify: company size is not directly related to the lottery, and the requirements for employers are not high—proof of financial ability, office space, federal tax ID, and evidence of a formal employment relationship with the applicant are sufficient. So small company size is not a direct cause of RFE, but small companies still face relatively high risks in RFE. Why is that?

Specialty Occupation

Regarding specialty occupation, USCIS itself has no written regulations specifying which positions are reasonable and which are not. If there is any reference document, it's the Department of Labor's Occupational Outlook Handbook (OOH). For small company employees, the most common issue is that applicants with "jack-of-all-trades" majors are questioned about the specialty nature of their occupation. Can your position be performed by someone with a high school/bachelor's degree? Why does it require a master's degree? Does your company's business scope have the capacity to provide a position of this specialty level? For example, sales and marketing positions at some companies are often questioned about specialty occupation.

How to solve:

• First, after being selected and before submitting H1B application materials, communicate with the lawyer about which job position your duties are suitable for applying to, which can increase the H1B approval rate. For example, if the position you are currently doing is recommended on OOH as requiring an associate degree, then it does not meet H1B application standards. The best approach is to consult a lawyer and switch to a job title that requires a bachelor's degree and matches your work content for the application.

• Second, if you encounter an RFE, you can submit an Expert Opinion Letter to prove from the perspective of an industry expert that your position belongs to a "Specialty Occupation."

Availability Of Work

Actually, this reason is common regardless of company size, but employees at small companies face higher risks. Why? Because with a small company and less business, USCIS is more likely to question whether a certain position is necessary in that small company.

For example, the previously difficult position: Marketing Research Analyst. Why is it difficult? In USCIS's view, for a small company with fewer than 10 people, doing market analysis is not considered a highly specialized and necessary position, so it's hard to successfully convince USCIS later.

How to solve?

• Self-check: Is your professional background suitable for this position? Does the company's business scope match your work? Later, when registering for H1B and filling in the position, be sure to consult with a lawyer about which position is safer to apply under.

• Pay attention to Job Description: When reviewing, USCIS not only looks at Job Title but also at Job Description. Therefore, when writing the JD, try to describe in detail how your work helps the company's business growth. This is also very important during RFE.

• Face the challenge directly and prepare explanatory materials: It is normal to encounter an RFE. When submitting materials, do not hide anything—lying makes it harder to pass RFE. Prepare materials such as the company's business plan, information on other employees in the same position, and current business cooperation of the company. Don't be too nervous; the RFE approval rate is very high, exceeding 90% last year.

Is it feasible to register for the H1B lottery yourself if the company has no lawyer?

It's feasible; there's not much difference between self-registration and lawyer registration. The only difference is that lawyers are more professional and familiar with the procedures. The entire lottery registration process is actually not complicated, and application materials are only needed after being selected, but when it comes to procedural issues, it's advisable to hire a lawyer to lower the risk. Leave professional matters to professionals; it's not worth skimping on this.

Actually, during the lottery registration stage, employees don't need to handle much—just give the EAD card to HR. The troublesome part is after being selected: the company needs to cooperate in submitting various materials, plus the filing fees, which is one reason many companies are unwilling to support H-1B. Generally, lawyer fees are around $2,000-3,000; some lawyers are free before the lottery and charge after selection.

If the company doesn't want to pay, can I self-fund the lottery?

According to USCIS law, it is not allowed. In terms of cost, the filing fee after selection is generally around $5,000, which is not high, but the problem is that submitting materials this way may likely lead to RFE and denial, because USCIS would consider it as buying sponsorship. Overall, self-funding the lottery is not recommended.

Can a small company's H1B application be approved?

Yes, company size is not directly related to H-1B lottery/application, and the requirements for employers are not high—proof of financial ability, office space, federal tax ID, and evidence of a formal employment relationship with the applicant are sufficient. A small number of employees does not necessarily lead to a higher probability of RFE denial.

Don't be overly nervous; small companies can also pass the lottery. There are countless cases of small companies winning H-1B and successfully getting approved. Find a reliable lawyer and prepare the relevant materials, and there won't be major problems. Those working at small companies should not assume their approval probability is low because of this—don't panic.

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