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USCIS Makes Changes to the H-1B Lottery
Jan. 31 2019

USCIS Makes Changes to the H-1B Lottery

Topics: Immigration

Today, USCIS published its final rule “Registration Requirement for Petitioners Seeking To File H-1B Petitions on Behalf of Cap-Subject Aliens” in the Federal Register.  This new rule seeks to make two changes to the selection process for initial or “Cap Subject” H-1 visa petitions:

The Immigration and Nationality Act limits the number of new H-1 visas issued every year.  The Act permits USCIS to issue 65,000 visas to employers seeking to hire foreign nationals in specialty occupation positions.  Additionally, the Act sets aside 20,000 visas for foreign nationals that hold a postgraduate degree from a US university.  USCIS accepts new H-1 petitions on the first week of April.  If USCIS receives more than 85,000 petitions, they conduct a lottery.  The present practice is to pick the 20,000 postgraduate (sometimes referred to as the “Masters Cap”) first, and then include the Masters Cap lottery losers into the regular 65,000 visa lottery.  The regulation published today reverses the order of the lotteries.  The regular lottery will be conducted with both postgraduate and non-postgraduate petitions first, and then the 20,000 Masters Cap lottery will be selected among the regular lottery losers that hold US postgraduate degrees.  USCIS believes that more US postgraduate degree holders will receive visas by reversing the order.

USCIS is implementing an electronic filing system.  Presently, employers file H-1B petitions on paper.  Immigration regulations generally require filing an original and a copy of an H-1 petition.  USCIS regularly received more than 200,000 H-1 petitions during the first week of April.  That’s a lot of paper that USCIS has to handle.  By implementing an electronic filing system, USCIS will save both time and money by not having to deal with paper.  USCIS will rolling out the electronic filing system in Federal Fiscal 2021 or in April of 2020.  Petitions filed this April will be submitted on paper.

Like most of the administration’s attempts to implement its immigration policy, expect legal challenges to this regulation.  Watch this blog for further updates.

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Robin Largent has a regular presence in California state and federal courts and has been lead defense counsel and appellate counsel for large and small California employers in litigation (and arbitration) ranging from individual discrimination and harassment claims to complex wage and hour representative and class actions. She also leads the firm’s appellate practice, having substantial experience and success handling appeals, writ petitions, and amicus briefs in both state and federal court on issues such as class certification (particularly in the wage and hour arena), manageability and due process concerns associated with class action trials, exempt/non-exempt misclassification issues, meal and rest break compliance, trade secret/unfair competition matters, and the scope of federal court jurisdiction under the Class Action Fairness Act.
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