New H1B Visa Rule Will Change the Annual Lottery for Employers

The USCIS has just announced a rule change that will significantly impact how H1B petitions are submitted for the annual lottery.  It will involve pre-registration by employers and change the timing of when petitions are reviewed.

The Current Lottery System

The current filing system is as follows:

  1. The entire petition and all supporting evidence are prepared and submitted starting in April for entry into the lottery.
  2. The lottery is conducted in the first week in April.
  3. The petitions that are selected in the lottery are then reviewed by USCIS, and those petitions not selected are returned, along with the fees paid.
  4. The review and approval of petitions is usually complete by June for an employment start date of October 1st at the earliest.

The New Lottery System with the Rule Change

The new rule has been approved by the US Office of Management and Budget, and is in a public comment period.

Here is how the new lottery filing system will work:

  1. In April, companies that wish to sponsor an H1B visa employee will pre-register electronically for the lottery, presumably online.
  2. The USCIS will then run the lottery as usual.
  3. The sponsors/beneficiaries that are selected will then submit the full H1B visa petition, but it is not known what the deadline will be.

What is the Impact of the New Lottery System for Sponsors and Applicants?

At first glance, this change seems to be more efficient, because the sponsor won’t have to prepare a petition or pay the fees unless they are first selected in the lottery.  But this may be a limited benefit depending on how much time a successful lottery entrant has to submit the full petition. Those may need to be ready to go anyway, with all of the supporting documents.

There is also an additional registration form that needs to be prepared to enter the lottery, so that actually ends up being more work in the end.  It does make it easier for more sponsors to enter the lottery, since they don’t have to submit the full petition, so that may have an impact on the number of lottery entrants since the risk/effort ratio is decreased.

Why Did USCIS Make This Change?

The ostensible rationale seems to be to streamline the process for sponsors and eliminate the need for filing full petition for cases that will end up rejected in the lottery.  However, this change in the process may be a way for USCIS to ‘pre-screen’ or prioritize sponsors based on the type of business they are in, or even the type of degree the worker has.

USCIS claims that the lottery process is completely random, but in reality, it is a ‘black box’ and no one knows how it is actually run.  This new lottery system could make it easier to eliminate sponsors such as outsourcing companies, who have dominated the lottery for years by flooding it with petitions.

It is not hard to imagine that those types of companies could be red-flagged or deprioritized by the lottery metrics, so that smaller companies or direct hiring firms could take precedence over the contract workers that are often employed by IT outsourcers.

In any case, the rule change won’t be fully approved for 3-6 months, but that may be in plenty of time for the April 2019 lottery.  Sponsors should monitor this development, and we will keep you up to date here on the blog as we learn more.

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  • December 11th, 2018
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