The fiscal year 2020 H-1B lottery season is upon us, and uncertainty remains regarding the proposed regulation to tweak the H-1B lottery program. Notwithstanding the uncertainty, employers interested in filing H-1B lottery petitions are encouraged to start the process now.

Historically, the U.S. Citizenship and Immigration Services (“USCIS”) has begun accepting H-1B lottery petitions on April 1^st, but based on the proposed regulation, a preliminary electronic registration may be required during the 14-day period leading up to April 1^st (i.e., starting on March 18^th). Although at this point the chances of this level of change becoming effective for this year’s lottery process appear slim, USCIS sent a final version of the proposed regulation to the Office of Management and Budget for review on January 11, 2019. It remains to be seen if and when a final rule will be published in the Federal Register and when any such rule would be effective. In order to be prepared for the potential electronic registration filing, as well as the H-1B petition filing generally, employers should start making preparations soon.

As many employers are aware, the H-1B program allows companies to temporarily employ foreign workers in occupations that require the theoretical and practical application of a body of highly specialized knowledge and a bachelor’s degree or higher in the specific specialty, or its equivalent. H-1B specialty occupations may include fields such as science, engineering, and information technology.

A congressionally mandated cap limits the number of available H-1B visas to 85,000 every fiscal year, with 20,000 reserved for certain beneficiaries with a U.S. master’s degree or higher. For the past several fiscal years, employers have filed more H-1B petitions than there are available visas, resulting in a lottery to determine which petitions are selected for processing. Petitions not selected in the lottery are returned along with the filing fees. The following chart provides the filing information and selection rate for each of the previous six fiscal years.

Importantly, petitions filed on behalf of current H-1B workers who have been counted previously against the cap, and who still retain their cap number, are not counted toward the congressionally mandated cap.

Given the uncertainty with the upcoming H-1B filing process and other considerations, Koley Jessen’s Immigration Practice Area is hosting a free webinar. If your company is interested in filing an upcoming H-1B lottery petition, we invite you to join us on Friday, February 8, 2019 at 11:00 a.m. The webinar will discuss the status of the the proposed regulation and recent adjudication trends in H-1B filings with respect to occupational categories and required maintenance of ongoing status, among other hot topics. If interested, please email events@koleyjessen.com.  

If you have questions about petitioning for H-1B workers or other general questions about employment-based immigration, please contact one of the immigration specialists in Koley Jessen’s Immigration Practice Area.

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