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Trump Administration Proposes Electronic Registration for H-1B Lottery Before Filing Petitions

6 Dec

On Monday, December 3, 2018, U.S. Citizenship & Immigration Services (CIS) published a notice of proposed rulemaking in the Federal Register, proposing to introduce an electronic registration requirement and a change in the lottery process for H-1B petitions filed under the annual H-1B quota.

Under the proposed rule, employers would be required to register petitions through an electronic registration process.  Registrations would be subject to a random selection process (lottery), and only selected registrations would be permitted to proceed with a full H-1B petition under the annual quota.

Additionally, the proposed rule would invert the order in which the CIS conducts the U.S. Master’s Cap and H-1B Regular Cap lotteries.  Currently CIS conducts the Master’s Cap lottery first, and all U.S. Master’s petitions not selected in the Master’s lottery are entered into the Regular Cap lottery for a “second bite” at the apple.  Under the proposed change, CIS would conduct the H-1B Regular Cap lottery first, and then enter any unselected U.S. Master’s petitions in a second lottery to select the separate 20,000 Master’s cases exempted by statute from the regular quota.  The CIS indicates the agency expects the result to be a greater percentage of U.S. Master’s cases selected overall and a smaller percentage of Regular Cap cases selected overall.

Implementing a pre-registration process prior to the upcoming H-1B Cap filing season, for which H-1B petitions should be filed beginning April 1st, would be a monumental task.  It is likely that the system will not be in place and ready for implementation in time for the upcoming filing season; however, the CIS may seek to push forward with plans to invert the order for conducting the H-1B Regular Cap and U.S. Master’s Cap lotteries.  Such a change, though more impactful on odds of selection, would be least impactful on overall filing procedures and could conceivably be implemented for the upcoming cap season.  Before implementation, there is a notice and comment period which will expire on January 2nd, and the CIS must consider all comments submitted during the comment period. Click here to provide comments.

Foster will continue to monitor developments in CIS rulemaking and will make updates available via Immigration Updates© on our website at www.fosterglobal.com.