Changes to the H-1B Visa Lottery System - Impact on the FY2020 H-1B Cap Filing Season and Beyond

Stinson LLP

On January 31, 2019, the Department of Homeland Security (DHS) published a final rule amending its regulations governing H-1B petitions that are filed under the H-1B annual cap. There are two main components of this final rule, which becomes effective on April 1, 2019: employers need to register and be selected before they can file an H-1B petition, and U.S. Citizenship and Immigration Services (USCIS) is reversing the order in which they select petitions. Regarding the registration, it is important to note that DHS is suspending the electronic registration requirement for the fiscal year (FY) 2020 H-1B cap filing season. This means that H-1B cap-subject petitions filed as part of the FY2020 H-1B cap filing season, which commences on April 1, 2019, will require petitioners to submit a complete H-1B petition to the USCIS, in order to be eligible for selection in the lottery.

The H-1B visa program administrated by USCIS is the main program used by U.S. employers to hire temporary professional foreign workers in a variety of specialty occupations. To qualify, the position must require, and the beneficiary must have obtained, at least a bachelor’s degree or the equivalent in a specific specialty occupation. There is an annual cap for the number of new H-1B petitions from U.S. employers that can be approved by USCIS. Generally, the cap applies to first-time H-1B visa holders. No more than 65,000 new H-1B petitions may be approved annually (the regular H-1B cap). An additional 20,000 new H-1B petitions may be approved each fiscal year for foreign national workers who have completed a master’s or higher degree from a U.S. institution of higher education (the master's cap). The demand for an H-1B approval is high, and more petitions are received than there are numbers available, resulting in the need for a lottery. 

Snapshot of the changes:

  • Selection of regular cap petitions first: intended to benefit beneficiaries with a master’s or higher degree from a U.S. institution of higher education. Effective for the FY2020 H-1B cap season starting on April 1, 2019: 
    • Under the current (soon former) system, the H-1B selection process separated applicants into two pools. The master's cap lottery is conducted first, and cases not selected in this lottery are then placed in the regular cap lottery.
    • Under the new system, the regular cap lottery will be conducted first, followed by the master's cap lottery.
    • The anticipated impact: this change will likely increase the number of petitions selected for beneficiaries with a master’s or higher degree from a U.S. institution of higher education by about 16 percent (approx. 5,340 workers).
  • Electronic Registration Requirement: intended to provide U.S. petitioners with a more efficient way to administer the H-1B cap selection process. Suspended until at least the FY2021 H-1B cap season to allow extra time for testing:
    • DHS is adding a new electronic registration requirement for petitioners seeking to file H-1B cap petitions. Once the requirement is implemented, all H-1B petitioners seeking to file cap-subject petitions will need to first electronically register with USCIS during a designated registration period which will start at least 14 calendar days before April 1 and will last a minimum of 14 calendar days. 
    • A separate registration will need to be submitted for each beneficiary and will include some basic information about the petitioner and beneficiary. A petitioner can submit only one registration per beneficiary in any fiscal year. The registration process does not screen for non-meritorious petitions.
    • USCIS will conduct a "registration" lottery and notify the selected petitioners of their eligibility to file their H-1B. The selection notice will also specify the petition filing time frame (at least 90 days). USCIS may reopen the registration process if necessary to ensure sufficient number of registrations are selected to meet the annual cap. 
    • DHS and USCIS will provide additional details and at least a 30 calendar day advance notice prior to starting the registration period.
    • The anticipated impact: when implemented, USCIS expects that the electronic registration requirement will create a more efficient process and offer substantial cost savings to U.S. employers and USCIS.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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