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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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Sacramento Office Managing Partner and Chair of CDF’s Traditional Labor Law Practice Group. Mark has been practicing labor and employment law in California for thirty years. His practice has a special emphasis on the representation of California employers in union-management relations and handling federal and state court litigation and administrative matters triggered by all types of employment-related disputes. He is also adept at providing creative and practical legal advice to help minimize the risks inherent in employing workers in California. He recently named “Sacramento Lawyer of the Year” in Employment Law-Management for 2021 by Best Lawyers®.
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