H-1B Lottery- What is it?

H-1B Program

H-1B is a temporary non-immigrant work visa issued to foreign nationals by the U.S. government. H-1B visais considered for speciality occupations that require theoretical and practical knowledge in specialized fields such as in IT, finance, accounting, architecture, engineering, mathematics, science, medicine, etc.and at least abachelor’s degree or higher in the specific speciality or its equivalent.

H-1B visas are subject to an annual visa cap consisting of 65,000 H-1B visa regular cap and 20,000 for U.S. advanced degree exemption, known as the master’s cap for each fiscal year. Of the 65,000 under the H-1B regular cap only 6,800 visas are set aside for Chile and Singapore nationals in every fiscal year under the free trade agreement between U.S.-Chile and U.S.- Singapore. Visas unused from this quota become available for H-1Bs for the next fiscal year.

Every fiscal year is from October 1st to September 30th. U.S. employers can begin applying for the H-1B visa six months before the employment start date requested for the applicant.

What is the H-1B Lottery?

The H-1B lottery is conducted via acomputer-generated random selection process once the cap quota is surpassedto select H-1B petitionsof regular cap and the U.S. advanced degree exemption for the fiscal year.

Once the USCIS selects 20,000 petitions from the advanced degree exemption, then all the other advanced degree exemption petitions are counted under the regular cap and, once the 65,000 regular cap is reached, the U.S. Citizenship and Immigration Services (USCIS) announces that cap has been filled and rejects further petitions.

H-1B employees working in the Commonwealth of the Northern Mariana Island (CNMI) and Guam are exempted from the H-1B cap if their employer files their petition before Dec31, 2029.

In FY 2020, the Department of Homeland Security (DHS) announced a final rule amending regulations governing cap-subject H-1B petitions, including those that may be eligible for the advanced degree exemption. This final rule reversed the order by which the USCIS selected H-1B petitions under the H-1B regular cap and the advanced degree exemption, which was put into effect for the FY 2020 cap season. 

Upcoming Changes to the H-1B Cap

The USCIS has recently announced the successful implementation of theH-1B Electronic Registration Process for the Fiscal Year 2021 H-1B lottery. The electronic registration process will make the process more efficient by reducing paperwork and information exchange and will also render overall cost savings to petitioning employers. As per the new process, employers will initially complete a registration process which will require them to provide only basic information about their company and each potential H-1B worker. The USCIS will open an initial registration period from March 1 through March 20, 2020. Subsequently, only selected cases will be eligible to submit their petitions under the H-1B cap.

Previously, petitioning companies were required to submitcomplete H-1B cap petitionsto the USCIS, and the USCIS would then select eligible petitions through a random selection process. This process resulted in voluminous paperworkwhich in turnincurred heavy mailing cost to petitioners and other agencies/firms filing petitions on behalf of the petitioning companies.

Under the new process,employers who are seeking to file H-1B petitions for their employees will have to first electronically register and pay the $10 H-1B registration fee per employee.This process isalso made applicableto those who are eligible for advanced degree exemption.

The USCIS will update the registrants with step-by-step instructions on how to complete the registration process on the website along with dates and timelines as the registration period nears.The USCIS will also conduct public engagements and other outreach activities for registrants and interested parties to ensurethe registrants are fully aware of the new registration process system.

The upcomingchanges to the cap season is causing a lot of anxiety amongst petitioning companies and law firms and further updates are awaited to see how the FY 2021 lottery will pan out.

Rajesh Khandekar

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