H-1B Visa Cap Registration and Lottery
David B. Raft, Senior Supervising Attorney
A prospective employer may file a H-1B petition to the US Citizenship and Immigration Services (or USCIS for short) to qualify an individual for employment in a ‘specialty occupation,’ which is a position which requires the knowledge gained in completing at least a Bachelor’s Degree in a specific academic field (or one closely related to it). The H-1B visa category is subject to an annual quota, with there being a total of 65,000 new H-1B visa numbers available each US Fiscal Year. An additional 20,000 are available to individuals that graduated with an advanced degree from a qualified academic institution in the United States. The US Fiscal Year starts on October 1 every year, with the H-1B filing window open 6 months before then. This limitation in the availability of certain new H-1B visa numbers is known as the H-1B Cap.
Because of a combination of the high demand for these visas and the numerical limitation applicable to new H-1B case filings, the USCIS implemented an electronic registration system in 2020 in which employers may register individuals online for the purpose of having them to considered in a lottery for the 85,000 total H-1B cap numbers. The USCIS routinely received more than 200,000 H-1B registrations, or actual case filings prior to the 2020 change. Because of this high demand, if the USCIS receives more H-1B registrations than there are H-1B numbers available, it conducts a lottery to decide which of these H-1B case registrations will be accepted for filing. The registration window is open for a minimum of two weeks each year, with the period typically opening in March with the intent that cases that are selected in the registration lottery can thereafter be filed starting on April 1st and continuing on through June 30th of that same year. In the event there are remaining H-1B numbers available post June 30th, the USCIS conducts a secondary lottery of the existing case registrations, notifying the employers if their cases were selected. In 2020, the USCIS notified employers of their cases being selected in the second lottery on August 14th, with a November 16, 2020 deadline to thereafter file a H-1B cap case on behalf of the individual. It is widely anticipated that there will be a secondary H-1B lottery conducted sometime this summer, once the June 30, 2021 deadline for filing an initial cap case passes.
USCIS’s online portal at https://my.uscis.gov/ allows a prospective H-1B employer to create an account profile as a H-1B Registrant, with the intent to either administer the process on its own, or otherwise accept registrations submitted by attorneys on behalf of the employer. Information required of the H-1B Registrant is basic – name, title, contact details including phone and email, employer name, address and FEIN. Information required of the individual to be registered for the H-1B lottery is also basic – legal name, date of birth, country of birth, passport number and if the individual has a qualified Advanced Degree. USCIS charges an administrative fee of $10 per registration. Once the fee has been paid for, the case registration will reflect that it was submitted. An employer is permitted to submit a single registration per individual – duplicates submitted by the same employer, or on behalf of the same employer will result in the disqualification of all registrations. USCIS may even take the position that related employers may not submit registrations on behalf of the same individual, perceiving these additional registrations as duplications.
In the event the USCIS selects a registration, the account profile for that registration will reflect that it was selected and a Selection Notice will be attached as a PDF with specific instructions on the filing of the H-1B cap case by the Employer. Cases that are not selected in the initial lottery remain as “submitted” until such time as they are either selected in the second lottery or change to reflect “Not Selected” once USCIS reaches the H-1B cap for that fiscal year.
Cases that are approved are effective with an October 1st validity date.