New H-1B Lottery Rules; Odds of Winning Increase 16% For Employees With Master’s Or Higher Degrees From U.S. Universities

The Department of Homeland Security recently announced a new final rule changing the regulations governing H-1B cap-subject petitions. There are two major changes to this process: 1) the introduction of an electronic registration system (not yet in effect for April 1, 2019 filings); and 2) reversing the order of H-1B visa number lottery selection , with the goal of increasing the number of foreign workers with a U.S. master’s degree or higher.

Starting April 1, 2020, USCIS will require all employers seeking to file H-1B cap-subject petitions to electronically register their petitions first. USCIS will make its selection of H-1B visa number winners from those that have registered online. Then once USCIS selects a registration, it will accept the usual H-1B application package. The downside is that many more employers with weaker H-1B petitions, who may have previously been deterred from filling petitions because of the time and costs associated, may now feel like it is worth it for them to register online. This could lead to more frivolous filings, decreasing the chances of selection for those with legitimate applications.

The new rule also reverses the usual order of selection of the H-1B visa number lottery. The new procedure will go into effect for the filings on April 1, 2019. Previously, USCIS randomly selected H-1B petitions to reach the H-1B 20,000 advanced degree exemption first. Then, it selected H-1B petitions from the remaining pool of beneficiaries holding bachelor’s and master’s degrees to reach the H-1B 65,000 limit.

The new rule reverses the selection process. USCIS will now randomly select petitions for the 65,000 H-1B visa numbers first, including petitions for employees with master’s or higher degrees.  Then USCIS will randomly select petitions for the 20,000 H-1B visa numbers reserved only for employees with master’s or higher degrees from U.S. universities.  The intended result is that this will increase the number of advanced degree petitions selected overall. If you are a beneficiary with an advanced degree, you may be pleased with this change. Meanwhile, those beneficiaries with only a bachelor’s degree will likely see their odds of selection drop.

We will continue to monitor these changes and their effects on our client as we head into H-1B season.

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