News

USCIS formally announced significant changes to how it will conduct the H-1B lottery for the upcoming fiscal year 2021 H‑1B cap-subject season.

In the past, all petitioners would be required to submit full H-1B petitions to USCIS on, or within 5 business days of April 1st, for that fiscal year. If USCIS received more than the allotted H-1B visa availability (65,000 for regular cap and an additional 20,000 for the U.S. Master’s Cap), then all of the petitions would be entered into a lottery. Petitioners whose applications were selected in the lottery were notified that their case would go on for further adjudication. Applications that were not received were mailed back to the petitioner and the USCIS filing fees were not cashed.

Under the old system, employers would have to hire and pay lawyers to prepare an entire H-1B petition for submission only to risk not being selected in the lottery.

This year, USCIS is implementing a new electronic registration process that will offer more clarity (and save costs) to employers. Instead of submitting full H-1B petitions on April 1st, employers will submit an electronic registration with USCIS for each employee/beneficiary it intends to sponsor for an H-1B.

The window for employers to register opens on March 1, 2020 and closes on March 20, 2020. USCIS will charge a $10 non-refundable fee for each registered application. USCIS has indicated that it will notify all applicants whether they made the lottery or not by March 31, 2020. If an employer was selected, USCIS will provide details as to when and how the full H-1B petition should be submitted.

USCIS has cautioned employers that they cannot submit more than one registration per intended employee. If there are any duplicate registrations for a single employee, that employee will be disqualified and ineligible for this year’s lottery. However, employers are permitted to submit registrations for multiple employees.

One potential issue with this new systems is the “Cap Gap” rule for F-1 students were are currently on OPT. Under the previous rule, if a student’s OPT expired after April 1st and an employer submitted an H-1B petition on April 1st, then the OPT will automatically extend up until Oct 1st even if it expired earlier. Under the new rule, employers should be aware of when an employee’s OPT expires. If the H-1B petition is not submitted on time, the “Cap Gap” rule may not apply and the employee will go out of status, requiring them to either change their status or to depart the U.S. until a decision is made on the H-1B petition.

Please contact us if you are an employer or employee interested in registering for the H-1B lottery this year.