H-1B Lottery: Should You Hire an Immigration Lawyer Now or Wait?

The H-1B visa lottery has become one of the most anticipated—and nerve-wracking—features of employment-based immigration. With selection rates remaining well under 50% in recent years, employers and employees alike are navigating a maze of uncertainties each March. Loren Locke, an immigration attorney based in Atlanta, tackled a Reddit question on this topic: Should you hire an immigration lawyer before entering the H-1B lottery or wait until you’ve been selected?

If you’re an employer or an employee hoping to get an H-1B this year, here’s the breakdown with some key takeaways.

Why Hiring an Immigration Lawyer Early Matters

January or February would be the perfect time to select your immigration counsel if your company is trying to file an H-1B petition in this year's lottery cycle. Here are a few reasons why taking this step early can make a big difference:

Streamlined Process After Selection: If your employee is selected, you'll be ready to move forward immediately with filing the petition. In a process driven by strict deadlines, having legal counsel ready to go can prevent unnecessary delays. Further, lawyers offer oversight and can help you figure out right at the beginning if the H-1B petition you hope to file wouldn't actually be winnable.
Budget Expectations: Hiring a lawyer early gives you greater clarity on costs. Legal fees will vary based on your choice of attorney. This is also a reality check for companies considering sponsorship—if you’re not prepared to budget for legal costs now, it’s critical to evaluate whether your business is ready to take on the entire H-1B process. Entering the lottery is a lot cheaper than filing a petition, and if you are balking at the cost of the lottery, consider whether you can stomach the expenses of a full petition.

That said, some employers handle H-1B lottery registration in-house. We have not seen companies get penalized for deciding not to proceed with a petition after successful selection, whether because they've figured out that the case isn't viable or their business plans have changed. However, your organization should only enter the lottery if you’re genuinely committed to filing a petition for a specific employee to enable them to work in a professional role for the company starting next October.

Will Entering the Lottery Leave a "Black Mark" on Your Immigration History?

Some people worry that entering the H-1B lottery and not being selected could negatively impact their future travel or immigration filings. Here's the good news:

USCIS Records the Attempt, But It’s Not a Negative Factor: Every interaction with USCIS leaves a record tied to the beneficiary's name and passport number, but being unsuccessful in the lottery does not harm that person's eligibility for future visas. Neither the company nor the sponsored worker get penalized for attempting.
Travel as a Business Visitor Is Typically Unaffected: If you were planning to travel to the U.S. as a business visitor in the future, the H-1B registration won’t usually complicate that process. Even for visa-exempt Canadians who are frequent business travelers, entering the lottery doesn’t automatically trigger extra scrutiny at the border. That said, when you seek admission to the U.S., it's important to be able to show that your travel plans fall within the scope of the immigration status you seek. Working in the U.S. requires work authorization beyond what a business visitor has.

Here's one critical rule for all of your written and verbal communication with the government: never lie about your immigration history. Border and consular officers have access to your records. A dishonest answer to their questions can destroy your future visa prospects.

Employer-Employee Roles in Sponsorship

For employees eager to recommend an immigration lawyer, keep in mind the employer's central role in the H-1B process:

Sponsorship of an H-1B visa is the employer’s responsibility, not the employee’s. By law, employees cannot pay for the H-1B process, and employers sign the petition, while the sponsored employee does not.
While you, as the employee, can make recommendations for legal counsel, it’s ultimately the employer’s decision. They’ll need to vet the lawyer and pay the legal and government filing fees.

The takeaway here is that an H-1B is the employer’s petition—employees may connect them with a qualified lawyer but must understand that they can’t call the shots.

Planning for the Lottery: Key Considerations

For companies preparing to enter the H-1B lottery, be realistic about outcomes and think through the following:

Your Hiring Contingency Plan: With selection rates below 50%, odds are not in your favor in the H-1B lottery. Have a strategy in place for this employee if they’re not selected.
Commitment to Move Forward If Selected: Entering the lottery represents a commitment to file the petition if you're selected. Make sure this is a step you’re ready to take.

With thorough preparation, clear communication, and the right legal guidance, you can navigate the H-1B lottery effectively.