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H-1B Cap Lottery Changes – What We Know and What We Don’t Know

on Wednesday, 13 November 2019 in Labor & Employment Law Update: Sarah M. Huyck, Editor

In January of 2019 the Department of Homeland Security (“DHS”) announced two changes to H-1B cap-subject petitions: (1) a reverse of the order of the lottery resulting in the 20,000 “master’s cap” drawing for beneficiaries with a master’s degree or higher from a U.S institution taking place first followed by the drawing of the remaining 65,000 petitions, and (2) a requirement for employers seeking to file H-1B cap-subject petitions to first electronically register with the U.S. Citizenship and Immigration Services (“USCIS”) during a specified registration period.

The first change was implemented for the fiscal year 2020 cap season which occurred in April 2019. The second change was suspended for this year.  Recent statements from the USCIS have indicated the second change is slated to be implemented for the fiscal year 2021 H-1B cap selection process in the spring of 2020.

Most recently, on November 7, 2019, the USCIS announced a final rule that each H-1B registration submitted by a petitioning employer will require a $10 non-refundable fee.  The rule is effective December 9, 2019.  While it is anticipated, we still do not know if the registration process will be implemented for the next H-1B cap filing season or not. We also still do not know when this registration period will open for petitioning employers to register although the USCIS has indicated it will offer ample notice to the public in advance of transitioning to the registration process.  

Kara E. Stockdale

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