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Allen and Hodgman | USCIS planning to implement new H-1B lottery system

USCIS planning to implement new H-1B lottery system

U.S. Citizenship and Immigration Services (USCIS) has published a new regulation that will set up a web-based system to select H-1B petitions in the annual H-1B lottery. U.S. law limits the number of new H-1B petitions to a total of 85,000. In recent years the number of new petitions have greatly exceeded this number, so USCIS has held a lottery to select the petitions that qualify. The quota does not apply to H-1B extension. Most of the beneficiaries of these new petitions are recent college graduates who are in F-1 status.

In the past, petitioners have had to submit complete petitions to compete in the lottery. Petitions that were not selected were mailed back to the petitioner. Under the new system, employers will register on a USCIS web site beginning at least 14 days before the earliest date that new petitions can actually be filed, i.e., April 1. In other words, registration will be likely be open from mid-March to the end of March. Employers will list the names of the persons they want to petition for. There will be a $10 fee for registration.

Registration will remain open for at least 14 days. USCIS will then hold the lottery, and inform the winners they will have 90 days to file the actual H-1B petitions. The petitioners can file any time within the 90 day period, beginning April 1.

The advantage of this new system is that employers will not need to go to the time and expense of preparing complete petitions until they know the petitions have been selected. USCIS will not have to process and return tens of thousands of petitions that were not selected.

So far so good, but there are many problems with this new approach. In the first place, many employers that win the web-based lottery may not actually file petitions, because they will not actually follow through with the complexity and high costs of an H-1B petition. This will require new rounds of selection to add more petitions to reach the quotas.

In the second place, many persons will not want to wait 90 days to file their petitions. For instance, persons caught in the OPT “Cap Gap” will want their petitions filed as soon as possible, to ensure they are processed by October 1. This is because “Cap Gap” work authorization only lasts to October 1. So these employers may need to have their petitions prepared in time to file immediately after they are notified. This will defeat the purpose of the pre-registration procedure. The problem of Cap Gap protection could be solved if premium processing is available, but USCIS has not committed to premium processing for next year’s H-1B lottery season.

To make matters more complex, the regulation allows USCIS to suspend the new process in any given year. It is still possible that USCIS will suspend the regulation, and continue to use the old procedure in 2020. This situation has created great uncertainty for H-1B petitioners.

Our office is following the new lottery process closely, and will work with all employers and beneficiaries to guarantee the best strategy for your individual case. Contact us now for help with your 2020 petition.