USCIS Adopts New H-1b Lottery Regulations

USCIS has issued its final rule adopting a pre-registration requirement for the annual H-1b lottery, as well as a new lottery selection procedure so as to maximize the number of Master’s Degree petitions ultimately approved. Because of technical challenges and other reasons, USCIS will suspend the pre-registration regulation until the FY2021 lottery to be conducted in April 2020.

For the coming H-1b lottery season starting April 1, 2019, the existing requirement that companies file completed petitions, with filing fee checks, will remain in effect.

USCIS also adopted as final its proposal to reverse the selection order of Regular Cap and Masters Cap petitions so as to increase the percentage of Masters petitions selected in the lotteries. That change will be invoked this year. To this point, USCIS has conducted the Masters Cap lottery first, and conducted a second lottery from the remaining, unselected Masters petitions, plus the Regulator Cap petitions. By reversing the lottery order, USCIS believes it can increase by 16% the percentage of Master’s Degree recipients selected each year.

In adopting the petition pre-registration process to start next year, USCIS dismissed the effect that zero cost H-1b lottery entries might have on the overall number or quality of H-1b filings. Rather, it concluded that the numbers would probably not be affected overall, although offering no convincing data to support that hunch.

USCIS reiterated repeatedly in its memorandum supporting the new rules that companies registering in the lottery but not filing a petition if selected could face penalties for fraud, among other things. The agency rejected comments suggesting that petitioners pay a fee to register for the lottery, or to prepay H-1b filing fees with registration, subject to refund for non-selection. Too much work, USCIS decided.

USCIS states that it recognizes the technical challenges of developing and implementing the online pre-registration process. That conclusion makes sense for an agency that has spent billions of dollars to develop an online application filing platform with little to show for the expenditures (a few online forms for citizenship-related applications have become available, but it is unclear how widely used they are). USCIS has therefore built into the regulations a provision allowing it to waive lottery preregistration in any fiscal year when it deems necessary to do so. If the preregistration online platform is not ready for prime time by next year, USCIS could therefore again postpone implementation.

The USCIS final rule and accompanying memorandum will be published in the Federal Register on January 31, 2019, and will take effect April 1, 2019.