H-1B Lottery Pre-Registration Process Coming…but probably not next year

An advance copy of a regulation to be published Monday, December 3 began circulating today. U.S. Citizenship and Immigration Services (USCIS) is planning to implement a pre-registration process for the annual allocation of H-1B visas, which informally is called the H-1B lottery. USCIS will collect public comments for 30 days, consider and evaluate recommended changes to the proposed regulation and then publish a final regulation with an effective date for implementation. Given the short window between now and the April 1, 2019 filing date for next year’s H-1B petitions, it seems highly unlikely that the pre-registration process will begin next year. That means it probably will be business as usual for 2019, whereby employers will submit petitions during the first five business days of April. USCIS then will conduct the lottery to allocate the 85,000 visas and send notifications and rejections in the April to July timeframe.

The regulation has several key provisions. Each year, USCIS would announce a registration period of at least 14 days during which employers can submit individual registrations for specific employees. USCIS then first would allocate the 65,000 base amount of visas and include in that selection any U.S. advanced degree individuals. This is a shift from the current practice, which involves first allocating the 20,000 exemption amount for advanced degree individuals and thereafter putting any excess advanced degree petitions into the 65,000 pool for a second chance. The proposed rule notes the intent is to try to allocate as many petitions as possible to U.S. advanced degree persons.

Following the random selection process, USCIS will notify employers and provide at least 60 days to submit their petitions. Most employers now start the petition preparation process much further in advance than two months. The 60-day period therefore presents somewhat of a planning challenge to have the petitions ready in advance, or to wait and see and then prepare the petitions in a rush to submit them on time. There doubtless will be many comments disabusing USCIS of this short window to submit a petition following selection.

Finally, the proposed regulation has a “meltdown” provision, whereby if USCIS experiences a system malfunction in the pre-registration process, it can suspend the registration and revert to the current system of employers simply submitting petitions for a post-submission random selection process. The realities of information technology glitches likely led USCSI to consider this contingency to avoid a mutiny when the pre-registration system prevents employers from submitting their registrations.

This proposed rule has been discussed for several years and just now is surfacing in concrete form. The comment period will allow for a robust discussion of what might work with this pre-registration system and what likely won’t work. In either case, it would appear that 2020 is the earliest we will see this in operation.