DHS Issues Final H-1B Lottery Rule

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In early January, the Burr & Forman, LLP immigration team outlined a major change to the H-1B visa lottery system proposed by the Department of Homeland Security (“DHS”) (DHS Proposes Major Lottery Changes Ahead of H-1B Filing Season).  Last week, DHS issued the final H-1B rule, which is effective April 1, 2019.

The most drastic change to the H-1B lottery system is the electronic registration requirement.  Importantly, DHS has suspended mandatory electronic registrations until the FY 2021 H-1B period (which begins April 1, 2020) to ensure the system is fully functional before the requirement goes into effect.  As a result, H-1B lottery filings will go forward this April without pre-registrations.

When registration is required, employers seeking to sponsor a foreign national for an H-1B visa will need to register their petition during a filing window that will last at least fourteen (14) days using the DHS online platform.  DHS will then use the registrations to conduct the H-1B lottery.  Those selected in the lottery will have at least ninety (90) days after selection to file their petitions.

The remaining aspects of the new rule will be in effect for this year’s lottery.  Federal law limits the number of H-1B visas available each year to 85,000 with 20,000 being set aside for foreign nationals holding an advanced degree (defined as at least a U.S. Master’s Degree).  In the past, USCIS would first select the 20,000 advanced degree H-1B petitions, add any unselected advanced degree petitions to the remaining H-1B petitions, and then randomly select the petitions to receive the final 65,000 visas.  Under the new rule, USCIS will first randomly select the 65,000 petitions for the regular H-1B cap.  USCIS will then conduct the advanced degree lottery from the remaining petitions seeking to sponsor foreign nationals holding at least a Master’s Degree.  USCIS estimates the change will increase the number of foreign nationals with an advanced degree receiving an H-1B visa by 16%.

If the new rule performs as expected, employers may consider prioritizing H-1B sponsorships based on the education level of the foreign national.  With the new regulatory changes, it may be more important than ever for employers to work closely with immigration counsel to determine the best immigration strategy.

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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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