On Dec. 6, 2019, U.S. Citizenship and Immigration Services (USCIS) announced that it will implement a new preregistration process for the H-1B visa cap lottery in 2020. BakerHostetler previously addressed this development in 2019. The new system, which will go live in early 2020, will reduce the initial burden on employers seeking to sponsor new H-1B employees, but it will also raise important new issues.
The number of new H-1B visas issued each year is capped at just 85,000, except for certain H-1B petitions that are exempt from the cap. Historically, USCIS required employers to file complete H-1B cap-subject petitions, including filing fees and supporting evidence, during the first week of April. If more than 85,000 H-1B petitions were filed during the first week – which has been the trend since 2013 – USCIS conducted a random lottery to select the H-1B petitions to adjudicate. In the past several years, less than 45% of candidates were selected in the lottery.
This year, petitioning employers will complete an electronic preregistration form for each prospective H-1B cap-subject candidate. Each registration will require basic information about the petitioning employer and employee, plus a fee of $10, and will be e-filed.
Some important facts about this new process:
- The initial preregistration process window will be open from March 1 , 2020 through March 20, 2020, which begins one month earlier than previous cap seasons.
- USCIS will conduct a random lottery of the registered candidates between March 20, 2020 and March 31, 2020.
- Employers are limited to one registration per employee per year; duplicate registrations for the same candidate will be discarded.
- USCIS will conduct the same “reverse” lottery as in 2019: first, a general lottery for 65,000 H-1Bs and then an additional lottery of 20,000 H-1Bs for candidates with graduate degrees from U.S. institutions. Conducting the general lottery first benefits those with U.S. graduate degrees by increasing the overall selection rate. Conversely, this hurts the chances of petitioning employers who sponsor applicants without U.S. graduate degrees.
After the lottery is conducted, USCIS plans to notify petitioning employers of selected candidates by March 31, 2020. USCIS may reserve a queue of unselected registrations to create a waiting list. If the H-1B cap limit is not met due to rejections, withdrawals, or untimely or abandoned filings, additional registrants from the waiting list may be notified of their selection. This process will continue until the H-1B quota has been met for 2020.
For lottery winners, petitioning employers will be granted a 90-day window to file complete H-1B petitions on behalf of the named candidates.
On balance, the new H-1B preregistration process should benefit employers. It will be less rigorous and less costly to enter a candidate in the H-1B lottery. Additionally, the new system should provide more timely notification of lottery results, which previously left many candidates waiting in limbo for months. On the other hand, the ease and low cost of preregistration may lead to flooding the system with more candidates than in previous years and reduce the overall lottery selection rate, which is already historically low.
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