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USCIS Proposes Changes to the H-1 Lottery
Dec. 5 2018

USCIS Proposes Changes to the H-1 Lottery

Topics: Immigration

On Monday, USCIS published proposed rules affecting the H-1 lottery. Under the present rules, employers wishing to hire a new H-1 worker must file a prima facie approvable petition during the first week of April.  Petitions are filed on paper and in duplicate.  USCIS then types the names of the employers and employees into a computer that randomly picks 85,000 winning petitions (20,000 US Masters and 65,000 regular).  Under the present system, USCIS picks the US Masters winners first and then transfers the losers from that lottery to the regular lottery.  USCIS adjudicates the winning petition and mails back the losing petition packets to the employer or counsel.

The regulations proposed on Monday envision an electronic registration system. Instead of sending a fully drafted petition, employers register electronically. USICS picks winners from the electronic registration entrants, and the winners send in petitions.  This saves USCIS the time it takes to do the data entry for the lottery and the expense of having to handle and mail back the losing petitions.  USCIS also intends to reverse the order of the lottery draws.  They will include all of the US Masters candidates in the regular cap and pick the winners of the regular cap first.  USCIS will then conduct the Masters lottery among the master degree holders that lost the regular lottery.  USCIS believes more US Masters degree holders will be admitted to the United States as H-1s this way.

USCIS will receive comments on their rule for 30 days and then publish a final rule.  It is unclear if USCIS will have the electronic registration in place by the start of the Federal Fiscal 2020 H-1 lottery due to open April 1, 2019.

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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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