Employers filing H-1B petitions for individuals who have never had H-1B status have had to wait for the availability of a visa number, unless the employer is exempt. (Exempt employers include institutions of higher education, non-profit research organizations, and government research organizations.) Over the last few years, there has been a shortage of H-1B visa numbers to meet the demands. As a result, employers have had to participate in a lottery process that started April 1 each year (six months before the first day of each fiscal year October 1) to attempt to secure a number.

Earlier this month, USCIS published proposed regulations regarding an electronic registration process for the H-1B lottery. Right now, we are in a 30-day comment period that will end the first week of January 2019. USCIS is hoping that they will be able to implement the registration process for Fiscal Year 2020, that is, for the filing period that starts April 1, 2019. Below are some highlights.

  • All H-1B petitions to be entered into the lottery will be subject to an electronic registration process.
  • USCIS will announce the registration period at least 30 days in advance of the start of the process and the process will be at least 14 days long.
  • The intention is to start the registration process in advance of April 1, 2019.
  • There is no fee proposed for the registration process.
  • In order to participate in the registration process, an employer must provide the following:

    • Employer's name, Federal Employer Identification Number (FEIN), and Employer's mailing address;
    • Employer's authorized representative's name, job title, and contact information (telephone number and email address);
    • Beneficiary's full name, date of birth, country of birth, country of citizenship, gender, and passport number;
    • Whether the Beneficiary has obtained at least a Master's degree or higher from an institution of higher education in the United States;
    • Employer's attorney or representative; and
    • Possible additional information to be determined by USCIS.
  • Employers will be able to register each beneficiary only once and must attest to employing the individual in connection with a bona fide job offer if selected in the process.
  • If one is not selected in the process, one will have to re-register in the following year. No preference will be given to those who were registered previously.
  • USCIS will consider all of the petitions (regardless of whether the individual has a U.S. master's degree or higher) and select what they believe will be enough to meet the initial 65,000 H-1B visa allotment. Then, USCIS will consider those remaining petitions where the beneficiary has a U.S. master's degree or higher, and conduct a lottery for enough petitions to meet the 20,000 allotment. This is different from the current order and the stated goal is to ensure that more H-1Bs are given to those who have at least a U.S. master's degree or higher.
  • Employers will be notified of selection via an email and of where and when to file the actual petition.
  • If selected USCIS is proposing to provide employers with a 60-day window within which to file the H-1B petition. USCIS may stagger the filing windows to accommodate its workforce. USCIS believes that this 60-day window will be enough time for an employer to file a Labor Condition Application with the US Department of Labor and then file the H-1B petition.

As we are still in a comment period, any of the above proposals may change. Please stay tuned and we will keep you updated. The above has been provided for educational purposes only.