H-1B Lottery Goes Electronic: FY 2021

On January 30th, the Department of Homeland Security released a final rule and amendment to H-1B petition regulations for those petitions subject to the H-1B cap. The new regulation requires petitioners filing H-1B visa petitions subject to both the regular cap and advance degree exemption to first electronically register with the United States Citizenship and Immigration Services (USCIS). The change will not impact Fiscal Year 2020 filings, set to begin in April of this year. DHS has suspended the requirement until further testing of the new filing system is complete. For those petitioning in the coming weeks, this filing season may be the last time that petitioners must pay filing fees and submit a complete application before consideration for the lottery. While some of the changes will benefit petitioner’s financially, other amendments may impact the chances for some H-1B beneficiaries.


The final rule reverses the order by which H-1B petitions are selected for the lottery. The rule notes that the electronic system will first select petition “onbehalf of all beneficiaries, including those eligible for the advanced degree exemption.” The second round of selections, of 20,000 electronic petitions, would then be for those H-1B petitions eligible for the advanced degree exemption. DHS hopes that “[c]hanging the order in which USCIS counts these separate allocations will …increase the number of beneficiaries with a master’s or higher degree from a U.S. institution of higher education…” Besides a change in the order of selection, the new H-1B lottery selection process will be completely electronic. Thus, petitioners would pre-register for the lottery and only complete further documentation (e.g. the Labor Condition Application & Form I-129) if selected through the electronic pre-registration system.


While the new electronic filing system will disadvantage beneficiaries who do not qualify for the advanced degree exemption, the new filing system will save petitioners millions of dollars a year. The final rule will also attempt to curb the practice of “flooding” the lottery. The regulation prohibits petitioners from submitting more than one electronic registration for the same beneficiary during the same filing season. Therefore, those petitioners that submit more than one petition per beneficiary will invalidate all petitions filed on behalf of the beneficiary. While the final rule will not impact filings in April, the total impact of the changes to the Fiscal Year 2021 filing season will not be felt until 2020.