New H1B Lottery Rules Announced



Some questions have arisen as to whether the lottery for selecting FY 19 H1B petitions will be eliminated, given a recently proposed regulatory rule change.

See this link: https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201710&RIN=1615-AB71

The answer is no, at least according to the above proposed rule.

Indeed, DHS is proposing to resurrect a proposed rule from 2011 that creates pre-H1B registration for employers.

The idea is to select applications to consider by lottery, but before an employer puts in all the time, cost, and planning to submit the actual packet. With an up-front cap selection process, only those employers who have obtained a cap number would be required to submit the entire H1B Petition for a Nonimmigrant Worker, Form I-129.

This idea has merit because, as mentioned, it’s take a LOT of time, planning, and cost to create a proper H1B petition. Small employers, or first-time petitioners often cannot afford the time to become familiar with the complexities of H1 petitions, nor the cost of hiring an attorney to file it, only to be rejected from mere consideration.

However, there are mechanical difficulties to overcome in such a system that may be the reason that pre-selection was shelved. First, USCIS must consider the timing that registration opens, and what is fair to employers of different types. Larger employers may already be ready with their H1 “USCIS must somehow modify the annual April 1 deadline to give petitioning employers time to create and submit a proper H1B application once the have been selected. This impacts the LCA timing and DOL’s ability to adapt as well. Combined with the lack of need for a lottery process back in 2011, these bureaucratic challenges were too daunting to address.

Now, with petitions doubling the annual H1B allotment, addressing this lottery’s inefficiencies have not only become necessary, but paramount. Seven years later, the new rule is not yet official. But with USCIS slowly delving into technology improvements, a better system can hopefully be developed.

For those wanting to learning more about the H1B visa and its requirements, refer to our post on this issue from 2015.

http://www.immigrationqa.com/p/h1b-visas.html?m=1



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