H-1B Visa Lottery Process

Many of you are wondering about the new H-1B visa changes, specifically as related to the new selection process, or as some people are calling it, the “H-1B visa lottery” Process. Although it is called the “Visa Lottery,” an applicant does not have to buy a visa lottery ticket to be selected. Interested applicants should simply submit their petitions as they normally do and wait for the selection process.

What is the H-1B Visa?

The H-1B visa is reserved for foreign temporary professional workers filling specialty occupations. This usually requires at least a bachelor’s degree or its equivalent in a field directly relevant to the job. However, the number of H-1B visas issued every fiscal year (FY) is capped at only 65,000, with an additional 20,000 set aside for graduates of U.S. master’s or higher degree programs. In total, only 85,000 H-1B visas are available.

When can you file your H-1B Visa Petition?

H-1B visa petitions for FY 2020 will be accepted starting on April 1, 2019. So, if you are an employer who is considering hiring a foreign national, now is the time to prepare the visa petition(s) packets.

The electronic registration system will not be implemented in 2019. Employers must still prepare and submit their fully documented cases to the Department of Homeland Security (DHS) during the first five business days of April 2019.  If your petition is selected under the cap and DHS grants your H-1B authorization, the authorization should begin on or after October 1, 2019.

What is the H-1B selection process?

U.S. Citizenship and Immigration Services (USCIS) is required to start accepting cap-subject H-1B petitions for fiscal year 2020 (October 1, 2019 to September 30, 2020) on April 1, 2019.

As in past years, it is expected that the demand for these H-1B visas will outweigh the number available.

When USCIS receives more cap-subject H-1B petitions than the annual fiscal year limitation, USCIS conducts a computer-generated random lottery selection process to determine which of the petitions filed within the first seven days of April are selected for processing.

If a petition is selected, it will be assigned a receipt number, and USCIS will move forward with adjudication (approval, denial, request for evidence, etc.).

What is the H-1B Visa lottery process and the changes made under the new rule published on January 31st?

DHS published a new rule on January 31, 2019 that makes significant changes to the way in which DHS will administer the annual H-1B allocation (the H-1B cap), by changing the order in which the agency allocates the available slots under the H-1B cap.  USCIS and DHS went through a few steps to change the lottery process and published the final rule on January 31st, 2019. Below are the key changes to the Lottery Process:

>USCIS will announce the initial registration period at least 30 calendar days in advance of the start date.

>Pool of Potential Hires for H-1B Sponsoring: Employers interested in sponsoring H-1B for individuals they intend to hire, will need to first electronically register the individuals with USCIS during the specified registration period as given by USCIS.

>Registration of H-1B Applicants: Employers will get at least 14 days to electronically register the individuals with their company information. They can edit, delete, and modify the candidate details until the registration period closes.

>USCIS will require employers to complete a separate registration for each H-1B cap-subject case.

>USCIS will prohibit employers from submitting multiple registrations naming the same foreign national in an effort to increase the chances of selection under the cap. Indeed, DHS will invalidate such registrations.

>USCIS will conduct computer generated random selection, Lottery, to select regular quota filing registrants, then the masters quota are separated and lottery is run to select the US masters quota filing registrants.

>USCIS will notify electronically the selected registrants’ employer/sponsors to file H-1B petitions within 90 days. They will time it to fall on April 1st. The unselected registrations are kept on reserve to do another selected as needed.

>Employers need to file the H-1B petition using the standard process like before using Labor Condition Application (LCA), Fees and all the information supporting the H-1B job offer for the selected registrant.

>USCIS will adjudicate the petition as per their standard process and inform employers regarding their petition.

>DHS will distribute further information on how to use the new system as the agency draws closer to the date of implementation.

What happens if your petition is not selected?

For the 2019 filings, if a petition is not selected, it will receive a rejection notice and all filing fees/checks will be returned. If you anticipate hiring foreign workers in a specialty occupation, now is the time to start the visa petition process to ensure that your petition is ready to be filed by April 1, 2019.

What are the changes coming in 2020?

In 2020, DHS will implement an electronic registration system that employers must use when seeking permission to file H-1B cap-subject cases. Employers will electronically submit a short questionnaire to request permission to file H-1B cap-subject cases. DHS will allocate H-1B slots against the electronic registrations using the new selection method first implemented in 2019. Employers will then prepare full H-1B cases only if DHS selects their registrations. This change should save employers and DHS significant time and expense.

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Disclaimer: Nothing in relation to the enclosed information should be construed and or considered as legal advice for any individual, entity, case, or situation. The following information is prepared for advertisement use only. The information is intended ONLY to be general and should not be relied upon for any specific situation. For legal advice on your specific situation, we encourage you to consult an attorney experienced in the area of Immigration Law.