Statutes of Liberty: Major Changes to the H-1B Lottery Decrease Costs for Businesses

This sponsored column is by James Montana, Esq. and Doran Shemin, Esq., practicing attorneys at Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact James for an appointment.

April is a busy month for daffodils, accountants and immigration lawyers.

The first week of April is the biggest week of the year for business immigration: H-1B season. The H-1B visa is a visa for foreign workers who will work in a specialty occupation in the United States on a temporary basis. Shorn of legalese, that means that foreigners who have specialty degrees — software programmers, accountants, lawyers — can work in the United States.

Demand greatly exceeds supply for these visas. Each fiscal year, there is a cap of 65,000 visas and a separate cap of 20,000 visas, known as the master’s cap, for foreign nationals with a U.S. master’s degree or higher, for a total of 85,000 available visas. Most employers submit applications for foreign workers under this program in April in the hope that foreign workers will start work at the beginning of the next fiscal year, in October. Demand is indeed intense.

Last year, USCIS began accepting fiscal year 2020 regular cap petitions on April 1, 2019. USCIS reached the 65,000-regular cap just four days later.

For the upcoming H-1B cap season, however, USCIS has changed the rules for the lottery. USCIS will use an electronic registration process for fiscal year 2021 cap season. Now, between March 1 and March 20, 2020, all employers seeking to file cap-subject petitions, including advanced degree petitions, must electronically register and pay a $10.00 fee to USCIS for each petition they wish to file. USCIS will then select registrations at random, and only those registrations chosen will be eligible to file a full cap-subject petition.

Previously, to file a cap-subject petition, employers submitted their petitions in full. This required many reams of paper and significant legal bills, with only a chance of having the petition selected. It also required tons of manpower on USCIS’s part to sift through all of the petitions. Now, employers will just submit a lottery ticket application with a $10 fee attached.

We can’t exaggerate how much this will lower legal bills for lottery entry. Is it good news for our bottom line? No. But it’s great news for clients!

If the new lottery system works, this will be a much better system for employers, especially smaller employers, who were understandably loathe to spend thousands of dollars on a petition that might not even be pulled out of the lottery. Now, smaller businesses will be able to compete with large companies on an equal basis.

The new H-1B lottery will be cheaper and better, but, if our experience is anything to go by, it won’t roll out smoothly. An experienced immigration lawyer can help companies navigate this new process. We are here to help.

As always, we welcome comments and will reply to all that we can. Happy Holidays!