Home » US Immigration - Visas » H1B Visa » USCIS Regulation for H1B Lottery: Is it Mandatory?

USCIS Regulation for H1B Lottery: Is it Mandatory?

Many of you have asked us regarding the H1B visa lottery if there is any official rule by USCIS as such or is there an official reference on the same so that we can review it. In this article, we will cover these aspects of official regulation around conducting of H1B Lottery and how it works.

H1B Registration Regulation – H1B Lottery Details

As per the H1B Registration final rule on Federal Register, USCIS may conduct H1B lottery, if they receive more registrations than the required number of registrations to fill the H1B visa regular and master’s quota cap. Below is the actual text from the regulation

“…USCIS will randomly select from among the registrations properly submitted during the initial registration period the number of registrations deemed necessary to meet the H-1B regular cap. This random selection will be made via computer-generated selection.”

Below is the screenshot of the actual H1B lottery text on the federal register

Regulatory Text on H1B Registration Selection Lottery Process
Regulatory Text on H1B Registration Selection Lottery Process

Below are additional regulatory text from the past dating to FY 2006 season.

USCIS Official Regulation on H1B Lottery

USCIS has a regulation in place that calls for conducting of lottery or random selection if a situation arises. The very first time, when the H1B lottery was conducted was for H1B FY 2006. Back in the years, during FY 2006, there was no H1B registration process in place, also back then the H1B visa cap quota used to remain open beyond the 1st week of April. 

Below is the exact text from the USCIS FY 2006 Press Release( it was a pdf file and USCIS removed archived content). As you read through this, you would notice the sentences:

USCIS has implemented the following process for FY 2006 H-1B filings in accordance with the procedures announced in the Federal Register at 70 FR 23775 (Allocation of Additional H-1B Visas Created by the H-1B Visa Reform Act of 2004).

For petitions received on the “final receipt date,” USCIS will apply a computer-generated random selection process. This process will randomly select the exact number of petitions from the day’s receipts needed to meet the congressionally mandated cap.

Official Federal Register Authorization for H1B Lottery or Random Selection

Below is the screenshot of the official document at Federal Register at 70 FR 23775, which talks about the authorization for USICS to conduct the H1B Lottery as needed for the fiscal year(FY) 2005 and in the future. Below is the exact text from the regulation:

 “As discussed above in Section VI, USCIS also is amending 8 CFR 214.2(h)(8)(ii)(B) to authorize random selection of H–1B numbers in FY 2005, FY 2006 and future fiscal years when USCIS determines that the numerical limits in a particular category will be reached.”  Pay attention the future fiscal years. See below.

USCIS Regulation on Acceptance of H1B petitions and H1B Random Selection

As per the regulation text at   8 CFR 214.2(h)(6)(x)(D), USCIS can conduct H1B Lottery or random selection as needed. Below is the actual text and screenshot of the regulation.

“When necessary to ensure the fair and orderly allocation of numbers subject to the numerical limitations in paragraphs (h)(6)(x)(A)(1), (2), and (3), USCIS may randomly select from among the petitions received on the final receipt dates the remaining number of petitions deemed necessary to generate the numerical limit of approvals. This random selection will be made via computer-generated selection. Petitions subject to a numerical limitation not randomly selected or that were received after the final receipt dates that may be applicable under paragraph (h)(6)(x)(A)(1), (2), or (3) will be rejected.”

USCIS Regulation on H1B Lottery Process
USCIS Regulation on H1B Lottery Process

Summary of USCIS H1B Numerical Limits Regulation Document

Below are the key points from the official regulation documents from USCIS before the H1B registration regulation came into the picture.

  • The H1B cap would remain open for at least 1st 5 days.  For any fiscal year, this means all petitions received on 1st 5 business days (April 3 to April 7) will be accepted.
  • USCIS will conduct a random selection process made via computer-generated selection as validated by the Office of Immigration Statistics.
  • USCIS will accept extra petitions to make up for denied, and revoked petitions based on historical data.

In the past, there was confusion among many regarding the H1B Lottery as USCIS did not state anything about the lottery in their press releases… Sometimes there were debates that it may not happen, in this context, there are 2 schools of thoughts with regard to H1B Lottery on this topic:

  1. It is understood that random selection will happen and doesn’t need to be explicitly called out in USCIS news releases.
  2. With the change in administration, USCIS wants to use a more intelligent selection process and selection would be based on merit.

What’s our opinion on H1B Lottery?

In our view, USCIS would continue to do what they have been doing for the last several years. If they want to make a fundamental change to the selection process, then that needs to be called out and they would do a regulation like the H1B Wage Levels Regulation for Lottery.

Will there every be a H1B lottery that will be based on salary, or based on job category (so that there is a good mix of software engineers, chemical/mechanical/civil engineers, architects, doctors etc.) or experience level (freshers vs experienced folks) etc.? We do not know at this point. Trump Administration tried to do something on that lines and it was withdrawn later.

Providing transparency is beneficial to all – those who support random selection and those who are against it. As of now,  we do not see any revisions to the above regulation and expect it to be the source of truth.

You may read H1B Registration Process Lottery for the latest info on the same. Share your thoughts below in comments section.


Other Articles


  1. I am currently working for a cap exempt employer. I have been offered a job with a cap subject employer who has filed my H1B petition this year. Will the SEVIS thing work for me to find out if my petition got selected in the lottery?

    Say I am fortunate enough and my petition gets selected, what is the earliest I can start working for the cap subject employer? Thanks!

  2. https://www.uscis.gov/news/alerts/uscis-completes-h-1b-cap-random-selection-process-fy-2018

    199K application this year. Lottery conducted on 11th April

  3. Hi All,

    According to SEVIS office my status shows pending. What does that mean, The change happend on April the 13th.

    My employer applied for h1 this year.

  4. Hi, Any one filled multiple applications?

    Missed last time in lottery when I genuinely filled. Now I filled 3 applications.

    • I filed genuinely last year and genuinely this year. Probably people like you lead to the increased number of applications where genuine people are not selected. The thing is, once the lottery is done, only then they come to know about duplicate filings. So you have already spoiled one spot out of 85000 by the time they find out. Not only will that spot go empty, but someone else could have used that spot in place of you.

      • ChachaBhatija, system is already corrupted. If you wont play the corruption game you will be screwed. Just thought like you last year and going to college to maintain my status and spent already 20K. I dont have any option to loose my loyalty. I got picked this time.

    • Hopefully with 199k both of your petitions get selected and you dont get a visa.
      Because of people like you, there are so many applications.

    • someone should report this to H1B abuse, is this a applying for a liquor license .. stupid peoples like you only forced US GOVT to take H1B rules strict .. :-@

      • This is happening from last 5 years. I am not stupid. You are stupid to not follow the trend. Its just a loop hole. Use it or shut up.

  5. MONDAY 17APR2018 1330 HRS EST.

    Hi All,
    I see many posts saying checks encashed, picked in lottery and I also see the EAC or WAC or the receipt number with WAC17 OR EAC17 but the later numbers dont match.

    Can some one give a definitive response if he / she has really received a valid receipt number?

  6. Varun
    April 15, 2017
    Hi Everyone,
    Today I got information from my attorney saying that my check was chashed. Feeling very happy. Second attempt under Advance degree quota. Reciept number was EAC17137XXXXX.

    I was following immigration blog from last year. One of the most informative website for H1B aspirants. Great Emily! Appreciate your efforts. Thanks.

    Good luck to everyone ?

    • Hey Brother, Congrats on your H1 Pick up.
      Do you mind to share briefly about the wage, type of job, so we can get idea how things are moving.
      Tnx in advance.

    • Dude.. Did you try that on USCIS my case status..
      I am not sure if such series exists.. please let us know the next two digits like
      EAC17137501XX or so..
      since a recipet like EAC17134501XX exists..
      After that they might have changed the pattern or have generated the receipts and not updated it..
      Or you sound crazy rising speculations.

      For sure.. if 7th is the last day to recieve.. by 8th they would have finished the lottery and from 10th they start out sending reciepts.. plus 5 days (since no premium processing this time).. by 14th evening the first of the reciepts would have reached the attorney.. More would come in today..

      So what you might say is true, since 137 working days from october 1st is April 10th but at the same time we never found the series in the case status..

      It will help if you can mention couple of more digits.. if you can..


      • Hey not sure about all the description about pattern in case number, but i just got info from my attorney about case number. For reference my friend got approved his case previous year. His reciept number was EAC17136XXXXX. This year october 1 was sunday, so relatively I thoughy 137 is valid. Any how I just don’t want to give fake info to readers, as I was seriously following these blogs for updates, i believe every one are here are just like me.

        All the best guys?

      • Thanks Varun!!!

        If you are an AD, and since you have got your reciept no.. you can follow up with DSO and make sure your sevis is updated with the reciept no.
        Again, I think this happens onyl when H1 is filed in Masters along with COS (change of status)

        Congrats and good luck!!!

        You will get a cap gap good enough to work till Sep 30th if the sevis is updated and is helpful for those whose EAD expires before Oct 1st and will give 60 days from then to stay back and wait for approval.

        I see a lot of hate speech in some blogs and at times here.. Remember whether its Andhra, Telangana, Bengali, Madarasi, Maratha or Hindi.. everyone is treated as Indian and all are just immigrants trying to find a legal work opportunity here.. We’ll achieve nothing with the comments.. trolling and with the hate speech.. Please don’t add spice to what all happening here..

        Stand united and help each other.. just a suggestion

    • Congratulations Varun ! Best of luck for your future endeavors!

      Could you please share some more details like the employer, location, wage,etc.


    • varun,
      Series EAC17137XXXXX is not even updated in myUSCIS but you got receipt mail also? what a serious joke.
      they will send normal mail, not email for fresh cases this time.
      if your case is XAC17137XXXXX then it must be last working day at USCIS, and you got a “Mail” also?
      but i like the way you gave details to say its a joke with a simple thought… let serious people to not to take it serious.. nice
      check en-cashing may be happening now, not beyond for anyone. receiving a mail is not heard of genuinely till now..
      this time the process takes 10 to 12 weeks.. good luck to you and all.

      • There seems to be some common issue in USCIS updating the numbers. Few of my office colleagues who had their extension or transfers filed, got their approval but the status isn’t available or updated on USCIS portal, but they had a confirmed mail from their attorneys (USCIS mail forwarded to them).

        So it’s true people are getting receipts but the status are not updated on USCIS.

      • I hadn’t recieved any mail/email. But got info from my attorney. I heard that when check was cashed, back side of check image might have case number (not sure), may be my attorney had given that.
        Also said, it might take few days to reflect in USCIS case status tool.

        As i said, i don’t want to share false info. Just want to share what I had for reference to friends like me.

        All the best guys!

    • You’re saying your universiry extended your OPT with you applying for Cap Gap? Your DSO will not extend your OPT until you provide the H-1B receipt.

    • Your new OPT I20 will have the receipt no on it.. You should request to generate the new I20 and send it to you.. Also you should submit the same to your employer before your OPT EAD expires to continue in the current job..

    • Perhaps they are filtering out the applications based on some criteria and then enter them into the lottery. No one knows for sure until they announce.

      • So many ad petitioners got cashed out right now…… What is that mean if they are still filtering out and preparing for lottery for later…

        • This is called crying in pain.. every one knows first the advanced degree lottery happens and 20000 ad petitions are picked. Later they are merged into regular pool and will conduct the lottery again.
          That’s why ad petitions come first and most of the ad petitions need to be processed before October 1st to fulfill the cap gap.. though there is no such rule.. they will try to process all the petitions around October unless RFE is issued and based on the work load..

          Also as per some attorney’s the sample of ad petitions this year is quite high. There are people who is trying their luck 5th, 4th and 3rd time. Also there is panic around opt extension and opt issued from acics. So there are quiet a good no of advanced degree petitions this year.
          Unlike petitions from Indian service based and those who try at random.. this is a do or die for those who currently work here in opt and stem extension.

          I wish every one all the best..
          This year is a night mare for those who filed multiple and duplicate petitions.

    • Aligning to last year’s timeline, most likely they will announce the process next week. Remember that last year they started to accept petitions since 1st, however this year it’s 3rd so we should shift to 2 days ahead.

  7. Since conducting this H1B stuff requires a huge amount of manpower, how come there is no insight, or information sneaks out of the thousands of employees working at USCIS? Did they require their employees to sign a confidentiality agreement like apple does? NO CLUE….

    • it looks they received more then 300K and trump might have ordered not to disclose the numbers out as it will portray bad image to him

          • I am not saying that is the situation, but if that is the situation then obviously dude its an insult to the current administration’s push toward more American hiring. President Trump tried all his bit so that companies stay away from H1b and move toward more local hiring and stop relying on body shops like Infy, TCS and desi vendors and in turn what he sees is an increase in applications. So it’s plausible that they might want to hide the initial numbers if they are more than expected, and probably release the numbers after screening ( merit-based evaluation of the applications).

          • @lol @Debbie i am surprised that you got sponsorship you h1b visa anyhow dumb ass people like you also apply h1b

      • This guy gg is behaving like a paid troll, We usually come across on Social Media, We all are professional and well educated, But not sure about his background.

    • @gg: Talk about yourself. I got sponsored because my company think I am worthy of representing them in front of the clients. You are getting sponsored to work at the back-end lol.

  8. True !

    Guys they have not conducted lottery this time, they are opening every case by case and cashing the checks, duplicate and multiple filings will be eliminated and cash will not be refunded

    • If you try to announce some big news like these during this period of sensitive time, please quote the resource where you got / heard from. If it is your own imagination, hypothetical analysis, please use proper words like “I guess”, “I think”, “It might”

  9. It’s official, uscis processing h1b without declaring lottery details.
    Immigrqtiongirl.Com just posted ..she got her check encashed.

  10. Now I can mostly officially say there r someone got cashed. Look here:


    This website is one of the most reliable resource in years

  11. Any update on the receipts? Please do not share any false information, many people are panicked at this stage. Appreciate if guys can help each other by sharing correct information.

  12. Dear friends, did anybody receive any update on applications. It looks someone received receipt as per this blog. But there is no further news from uscis.

  13. H1-B receipt received by regular mail!!!

    My attorney’s office is in Laguna Niguel, and she just confirmed that my case receipt was received a hour ago! I am so happy and good luck every one!

      • However, USCIS case status tool is not able to lookup.. Just saying invalid receipt number..
        My attorney will fax me the mail later, and I will post the content of the letter.

        • Prashant,

          Did you type that correctly? Few issues with what you have mentioned:
          – it should be WAC and not WCA
          – it should be 17 and not 18 as its still filed in 2017 and not 2018
          – 002 signify that it was received on 2nd day of the fiscal year (which starts on Oct 1). It should have been something like 13x.

          Are you sure your attorney gave you the right number?

          • 002 States that It Starts from OCT-2, Because OCT-01-2017 is Sunday. I Think 002 Makes Sense.


          • Vish,

            002 signifies the receipt date and not start date. As the receipt date would be April , the number should be 13x types.

          • Saurabh, don’t waste time on your comments for this person, he is just enjoying his time by trolling us.

          • As per the Post the receipt was received in Laguna Niguel and the Filing Address Laguna Niguel, CA 92607… I Picked some some randon Zip in Laguna Niguel—92677. USPS Regular Mail will get Delivered the Day After, which means the Lottery Could have been Completed on Monday.

            According to Last Year this is the Same timeline took for USCIS.

          • @Saurabh,

            According to your Article at Link


            Day :

            Day indicates the number of the computer work day starting from October 1st. October 1st is when the fiscal year starts for H1Bs USCIS. If it was filed on October 1st, it would be 001. It is a little tricky with this number, computer work day indicates only working days and not weekends. For example, if it is like October 20th, it would be 16th working day or something like that…For April 12th, it would be 134 as the weekends and federal holidays are taken out. You can use wolframalpha website to ask the exact week day after Oct 1st, you will need to add federal holidays to that number.

          • Vish,

            Quoting from your quote “If it was filed on October 1st, it would be 001”

            It depends upon the filing date and not the start date. All cap-subject petitions will have a filing date of April . That is why the receipt number should be 13x and not 002. I doubt USCIS will change the way they generate receipt numbers, but who knows what USCIS is up to.

          • hi saurabh,
            here 128 is possible for April 3rd date.

            EAC1712850003 is received on 7th April
            EAC1712850004 is received on 3rd April

            are you sure on 13X..

        • What a reciept no.. and Vish/Saurabh..

          How about EAC1713452044

          Do not try to find logical conception in rush hour. Thats only for regular work days of USCIS.
          Lets wait till end of day to hear lottery is done and wait for a month hopin to recieve our recipts..

      • Saurabh,

        Thank you for your crackdown. Apparently, a lot people start to bluffing at this moment of time to create panic and draw attention. We should need the real experienced experts like you to filter out those untruthful information!!

    • Are you serious? What’s your law firm? My company’s immigration lawyer also in that city, but the the lawyer emailed me they have not receive any receipt mail yet.

      I’m employed by a small company, and I asked the treasure department about the cheque. I was told that multiple of hour cap H1-B expense cheques have been cashed yesterday and today.

    • Bt usually uscis used to announce total number of petitions received.. And lottry conducted by 7th April…

      This year it seems little bit different process

      • I believe last everything came on April 12th … people started getting receipts ,

        Unlucky myself not get selected in Lottery last year , If they provide us lottery result i assume i can choose cap gap

        • You won’t get chance this year also… As your a fake guy who applied through a bogus consultancy.

    • Doesnt seem to be the case this year, especually with no Premium Process. You might be lucky and be one of the first to receive receipt number in couple of weeks, or unlucky last one, which might be June.

  14. This year odds of getting picked for master’s cap vs regular should be nearly the same. Despite getting two chances, the probability has been worsening for ones with masters degree from Us.

    1. There are several people that were not selected in last 2 year’s lottery, and are still trying their luck.
    those in US might have seen how number of people from different classes received their visa. For example at my graduate school everyone got the visa in 2013 and 2014, 90% got their visa in 2015 and 60% got their visas in 2016.
    2. Number of duplicate filings- several candidates are filing multiple applications through small bodyshops. Most of these people filing multiple petitions are from masters pool and are already in US. Sometimes their multiple petitions get picked up and that just wastes opportunities for others.

    The odds for people with master’s degrer are worsening simply because number of people in the pool is increasing due to rollover applicants as well as multiple petitions.

    Now for regular pool, despite what we have been reading in comments every year, companies like infy, tcs, wipro, HCL, accenture and cognizant have files 10s of thousands petitions each year in recent past. since there is no cost involved with unselected petitions they can take the chance and build bench strength. There are several people i personally know who won lotteries in last few years and havent flown to US yet as they dont have any projects. On the other hand there are several people already in US on student visas or in jobs that are on the verge of going back because of lack of visas. To top that, body shops that take money from people for filing visas make the entire situation worse.

    Merit based, salary based or job based doesnt matter but there needs to be some sort of visa reform. At the very least the fee for petition must not be returned that way people will avoid paying for multiple filing and companies will avoid unnecessary filings.

      • Somebody is making fool here. Employer is the one who pays for the check and not the attorney. How can the attorney know the checks got deposited. Fishy!!!!

        • I agree lottery might have been done and some employers already knew few folks who might have the cheques encashed.. but this guy is too crazy to say that the attorney knew the cheques got deposited..

          • Congratulation!!! I just checked with our accountant, and she didn’t see any of our checks got cashed yet… T_T

            Finger crossed!

          • Just checked with USCIS! Guess what, I filed 8 H1B petitions for myself this year and all 8 checks got deposited. How to get back money for other 7? Really worried 🙁

          • Last time when I recieved my reciept.. though it is updated in the Fragomen portal..
            The attorney still waited until the physical reciept is sent to my employer and then confirmed that my application is picked in the lottery..

            I know how the attorney’s behave..
            Last year in the same very blog I saw the check being cut and they never got the reciept..

            Attorneys are very careful in revealing the information. They do not air the news and speculation..

            So for you.. your attorney might be so concerned on you and filled with anxiety.. LOL!!!

  15. I am starting refreshing all the h1b news every hour right now… Couldn’t sleep and feel nervous all the time… T_T

    When this will be the end, and when USCIS will announce the total petition, the selection criteria for this year, and when can I get notified….

    I am feeling so helpless and desperate….

    How are yall guys feeling, my peer H1B warrior, let’s cheer up and pray for the lottery…

  16. I really wish USCIS looks into the Number of attempts as well. To someone’s point where lawful applicants miss out on opportunity through Lottery, there would be a ray of hope.

    Based on hierarchy of attempts, one should be considered for the 65K+20K pool.

    • Its unfair that USCIS denies visas for applicants approved in the lottery. Because maybe they took a spot of someone who would have all the correct paperwork to get the actual visa, bot was rejected for not winning the lottery….
      USCIS should make previous filter and see if they match criteria. Only then run a lottery.
      Maybe it was USCIS doing this year? As we did not hear about lottery yet.

  17. Got a question on the basic lottery process. When they select the 65K, do they also create a waiting list? Assume they select 65K. Lets say 500 of these get RFE and get denied. Will USCIS have a waiting list that they can dip into to compensate the freed up 500 applications, or in that year only 64.5K visas will be issued?

    • No waiting list. Past years lottery would select 65k random. Then USCIS would check each file individually. It might happen that at the end of the perior only 50k visas are actually given. USCIS will NOT do second lottery for 15k left.

        • It is sad. They could at least be clear and say how many from 65k lottery winners didn’t get the visas and maybe add that number to the next year cap.

          • While there is some uncertainty around USCIS’s exact procedures, they likely select more than enough visa applications in the lottery expecting that some of them will be rejected (how much more is probably based on statistics from previous years). I’m not sure if the 65k cap is a hard limit and always respected, though, as there is always some margin of error in statistics. At the end they may issue 65,100 visas or only 64,950. 15k deviation, however, would definitely not be within this margin of error.

  18. Saurabh
    What are the chances for Masters getting H1B this time. Do you think the number of applications may be within 20,000

      • “USCIS has also received a sufficient number of H-1B petitions to meet the 20,000 visa U.S. advanced degree exemption”
        Sufficient is a shady word to use. That doesn’t mean they passed the quota.

        • https://www.uscis.gov/working-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-fiscal-year-fy-2018-cap-season

          Check the update below ‘Cap Count’. This is what they have mentioned. “We have received more than the limit of 20,000 H-1B petitions filed under the U.S. advanced degree exemption.” So yes, they have received more than 20k Adv. applications

    • Satish,

      Masters is also oversubscribed. The chances would depend upon the final counts, which we don’t know at the moment.

  19. One question, not sure if its already answered.
    I am thinking that they will go through all the filed H1s and reject the ones that they feel are not fair without doing random selection. For example the petition is filed with Software Engineer or a lower salary bracket for the role etc. Can this situation make companies file a lawsuit against USCIS for lack of transparency? I dont think so, any ideas?

    • I dont think so either. If min salary is 65K and you applied with 35K only to see if you can win the lottery, then even if USCIS rejects the case BEFORE lottery the company can not sue.

      • Its 65k salary or a masters degree. So if someone has a masters degree with less than 65k salary then they are still eligible for H1B visa.

    • What your statement means is that the USCIS has considered the application even before lottery, (which they can not) Which also means the application gets all the privileges of a normal application as USCIS will not deny a case without providing plenty of advance warning and a chance to correct the problems. So for all these cases, they would need to provide a EAC number to track, which would imply being selected in lottery.
      So USCIS cannot reject applications except for fees and incomplete applications, before the lottery.
      My two cents

  20. Surab,

    I have FedEx tracking number, is there any way to check the status of my application ? Whether it picked or not ?

  21. I see a lot of people have shared info around filed LCA’s.

    How do I know how many LCA’s my company has filed for this year’s h1b, should I be selecting fy2018 on the labor website to see the LCA’s filed . When I select fy2018 i get cases found but when I try to see the list the site just keeps loading.

    • Assuming you want to find petitions that will be cap-subject,
      1) Select H-1B, FY2017
      2) Enter your company name
      3) Enter start date range as “08/01/2017” and “09/30/2017”. (this is still an approximation)
      4) The results will mostly be the expected results.
      5 ) Also when you open the LCA, you can verify whether it contains a non-zero value for “New Employment”.

    • Based on prior years, the earliest receipt numbers were received in the 3rd week of the month (non-PP). But that doesn’t mean anything for this year since nobody know what they’re planning to do.

  22. As per the latest alert from USCIS, There is no mention of the random selection (lottery) and also the wordings like “sufficient number” instead of “more than the limit” makes me think less than 100k petitions.

    But the big question is what are the chances of a lottery? Guess we’ll find out Monday/Tuesday!

  23. Lawyer from Greece waiting for my H1B decision (yes, we exist too!). I can tell you that the CFR are administrative rules promulgated by regulatory authorities, and are equally binding like any other statue. In fact, in adjudicating cases based on CFR, courts make no distinction between administrative rules and statues passed by the Congress. Now Title 8 of the CFR is promulgated by the DHS, and not USCIS, which is only a constituent body of the former. As other, including Seth have pointed out, USCIS has no choice but to follow the regulations in body and spirit. The regulation says in the relevant part:

    “When necessary to ensure the fair and orderly allocation of numbers in a particular classification subject to a numerical limitation or the exemption under section 214(g)(5)(C) of the Act, USCIS may randomly select from among the petitions received on the final receipt date the remaining number of petitions deemed necessary to generate the numerical limit of approvals.”

    If I were USCIS’s legal adviser, I would tell them there is no mandate to conduct a computer generated lottery because of the presence of words “when necessary” as well as “may” in the above sentence. In other words, USCIS has a discretion to conduct the lottery under the rules. Of course, it is another matter that a prospective H1B petition may challenge the decision not to pursue random selection because USCIS’s past practice may have created a legitimate expectation that a random selection will be conducted. This is a balancing of risk and benefits that USCIS will have to conduct, which I am sure they are well versed in.

    Let us wait until next week to see what decision USCIS makes. But the omissions made in this years statement certainly make things more interesting.

    • The term “when necessary” points to a “situation” that warrants a necessity to conduct lottery and the situation arises when the number of petitions exceeds the number of congressionally approved visas. Going by that logic, this year we have that situation which necessitates a random selection. At all other instances in Title 8 of the CFR, the language used is “USCIS will…”

      However, when random selection process is not congressionally mandated and it is a rule brought in place by DHS on its constituents, we can still expect the rule making entity to issue another rule to override its previous rule in the coming weeks. Or it could be brought into effect via an executive order as well.

  24. Saurabh,

    Great work!

    I just wanted to add this to the ongoing discussion: The words used in the Rules are ” USCIS may randomly select…..”. The word “may” is of critical importance here. As a lawyer, I can tell you that this word gives authority and discretion to USCIS in deciding over the manner of selecting the petitions. USCIS is not at all obligated to conduct a random selection process. The place where USCIS is actually obligated to follow the Rules is that the random selection process “will” be generated by computer and not in any other way.

    Hope my two cents help!

  25. 1) LCA Historical Analysis (4/08/2017)
    LCA Period 1: from 08/01 to 09/30 – Period 2: from 09/01 to 09/30
    2014 – 172,500 filed – period (1): 194,947 (0.88)- period (2): 130,141 (1.32)
    2015 – 233,000 filed- period (1): 244,752 (0.95)- period (2): 154,422 (1.50)
    2016 – 236,000 filed- period (1): 272,201 (0.86)- period (2): 161,800 (1.45)
    2017? – period (1): 200,193 (expected to grow)- period (2): 120,955 (expected to grow)
    For period 1: 172,165 (0.86) / 190.183 (0.95)
    For period 2: 163,289 (1.3)/ 185.432 (1.50)
    2) What we know (4/08/2017)
    USCIS officials have indicated that the overall volume is lower than last year’s record 236,000 submissions (See Fragomen alert 07/04/2017).
    Some companies previously confirmed lower volume (not filed for entry level).

    Prediction between 175K and 195k

    3) Criteria of selection
    Any criteria of selection based on merit would not be legal.
    Most likely lottery and then high scrutiny of selected petitions. Get prepared for RFEs
    Good Lakhs

    • As far as the number of cases filed from an organization i can give an indication. I belong to a top four IT MNC both with revenue as well as employees count wise.
      Last year from my practice with 2000+ employees filed 100+ H1b cases. This year the practice size is 2300+ but it only filed 20 odd cases.

    • This is what I strongly agree.
      I was thinking/ systemic guessing at 2 lakh petitions this year with a tolerance of 15K.
      we dont have to wait to know this news also too many days, its just 4 days away. just hold on, its the same with less no.of petitions and scrutiny for entry-level computer jobs.

      • I told you that total applications will be 20K+/- 15K,
        and the count is 199000 petitions for FY2018.
        my predictions were 95% close on no.of petitions.
        I told you that there will be lottery. Yes it is.
        The lottery date also i told you to be on tuesday., 11th April. and it is.

    • I understand all the LCA’s needs to be obtained at least by last week of March to have the H1B Petition submitted. Having said that, I have two data to compare against. Data taken on Mar 27th and Apr 8th.

      I assume that the employers would not want to loose out days by having the start data earlier than July’2017.

      Taken on Mar27th
      Start Date LCA Count
      01-sep-2017-30-sep-2017 87766
      01-aug-2017-30-aug-2017 93683
      01-Jul-2017-31-Jul-2017 30797
      Total 212246

      Taken on Apr 8th
      Start Date LCA Count
      01-sep-2017-30-sep-2017 120955
      01-aug-2017-30-aug-2017 102057
      01-Jul-2017-31-Jul-2017 33257
      Total 256269

      Data Source:- https://lcr-pjr.doleta.gov/index.cfm?event=ehLCJRExternal.dspAdvCertSearch

      With this assume, we would definitely have more than 65,000 petitions. My personal guess is that at least 80% of 212246 would be the number for this year. I would say approx. of 1,70,000.

      LCA Count for Big Companies(Wipro,Infosys,Tech Mahindra, CTS, HCL) is very less compared to last year.

      If uscis calls for Lottery for initial sort list of petition, then 1 of 3 application is lucky quotient that one could expect.

  26. If USCIS rejection due to ‘whatever’ criteria it uses leaves at 45k accepted petitions, when can we expect them to call for new petitions to be filed. If they strictly use a rule – it’s very likely to see high rejects this year.

    • I did not quite get your question but what I understand from your wordings is:
      if the no.of petitions the USCIS accepts this year is only 45K (just by rejecting many petitions for whatever their rejection criteria is), when will they call again for new petitions to fill the remaining 20k general cap of the current fy18?
      You dont even have to dream that cap is not met and they call for new petitions this year again. Not at all.
      if at all that happens, I think they will add this count in the next year. but not call again this year. so, next year the cap will become 85K (65+20) this year. but this is just a bad dream.

    • The Question posted by Mr Genius doesn’t have any Sense. How come 45k applications Mann ??? If your aware of h1b process you don’t post this kind of Silly and useless Query.

  27. As a hole, nothing special is going to happen to the process in this year. except:
    1. less no.of petitions must have filed, around 2 lakh if the negative wave is actually felt double heavily by people..
    2. more no.of petitions must have filed, around 3lakh plus, Because as per year after year H1B increase in demand and secondly, everyone is interested apply cause next year may have merit based system and no one is sure about its implications or whether implemented the merit based one.
    3. After lottery, while they go thru picked-up cases, they may eliminate H1B-jobs that are just entry level computer programming jobs, the candidate who already picked up in this lottery may not have issue, cause he can ask some one else to file for him, the employer’s job does not meet the “specialty occupation” requirement. so, candidate is safe as usual., so he can find other employer.
    4. Premium processing is suspended to cope-up with the work-load and to make sure they meet timelines for new filing numbers.
    5. Lottery is kind of become part of their standard and there is no new rule introduced to compensate lottery. (if we assume, by removing entry-level programming jobs may compensate the need for lottery:
    case1: if lottery is removed and low profile programming jobs are removed to reach exact cap to compensate that lottery. there will be at least 2 problems: no1. its very very long process to go thru each and every case before they approve only highly qualified profile jobs, now, may take months just to figure out whom to picked-up, if this happens people will literally die in waiting to know just whether their case picked up or not?. problem no.2: if they pickup only high profile jobs, not median or not all entry-level jobs, small companies or startups or companies who need specialty employees but not seniors but experts with less experience for example like data analyst/ scientists or any demanding jobs, will be suffered and its not a good move to pick up only the top cream, cause some companies suffer as a whole and need to shut their shops as a whole.
    so, as per current legal situation, lottery is something mandatory to happen. cause thats what should be done. H1B is not the problem what they think of all the time, cause H1B is legal immigration, they are focusing on illegal immigrants in the big picture.

  28. Saurabh,

    Thanks for the research. Good stuff!

    So a few of level setting first before I get to my question –

    1. The FEDERAL REGISTER provides a uniform system for making available to the public regulations and legal notices issued by Federal agencies such as USCIS. Therefore it is not a place for putting out congressionally approved acts or legislations

    2. 8 CFR Part 214 is a rule [not an act or a legislation] and the agency that issued the rule is USCIS using the powers vested on it

    3. Under Section 6 of the rule, it says “To ensure the fair and orderly allocation of numbers in a particular
    classification subject to numerical limits, USCIS will employ a random selection process” [Essentially USCIS is instituting random selection process entirely on its own discretion to ensure fair and orderly allocation of visas and NOT because USCIS has been asked do so by the congress or any other federal agency]

    4. The document says that *USCIS also is amending* 8 CFR 214.2(h)(8)(ii)(B) to authorize random selection of H–1B numbers in FY 2005, FY 2006 and future fiscal years. The key point to be highlighted here is that it’s USCIS which is making an “amendment” to an operational procedure

    5. Lastly, no act or legislation mandates that H1B visas MUST be allocated through a random selection process whenever the congressionally approved cap is met

    Now my question is –

    When in the past USCIS has entirely acted on its sole discretion and issued a rule without being directed by the President or the Congress or any other federal agency why can’t once again USCIS act on its discretion to issue another directive to override its own previous directive. I think it is totally a possibility particularly when the agency is deliberately trying to avoid the usage of the word “lottery” in all its public communication.

    Therefore, I contest your argument that a lottery “WOULD” happen. At best you can go as far as saying that a lottery “MAY” happen.

    Let me know your thoughts.

    • I appreciate your analysis. The best we can do is that waiting till next weekend. If there is no update, then there wont be ‘initial’ lottery.

      • Yes, only the next press release on 12th April should have the mention about lottery. If they dont mention “lottery” on 12th April. Or even the other extreme case, if You dont see a press release as early as on 12 April.

        then we actually sure that Lottery is actually may not planned this year and some thing merit is taking place, thats good.

    • Your friend,

      Thanks for the detailed response and correcting the terminology.

      Coming to your question – yes USCIS can override their own directive. However, its expected to be done timely. If not, they are opening themselves to lawsuits (different matter if they win it or not).

      So if USCIS wants to override their previous directive and shield themselves from lawsuits, a smart thing would be to make the announcement about the new directive in Feb/Mar. This way they can claim that ample time was given to petitioners and lawyers about the change. Right now the expectation (even in legal circle) is that lottery will happen just like before.

      In any case, all this discussion will be put to rest when they make their next announcement about the final counts.

      • Agreed that issuing any directive that impacts any legitimate expectation will result in plethora of lawsuits but hey! as you rightly said, may be that’s what the administration wants 🙂

        I think I have made enough speculation now 🙂 I am going to stay put and wait for the official communication.

        • Your friend,

          “I think I have made enough speculation now ? I am going to stay put and wait for the official communication.” – My thoughts exactly 🙂

  29. USCIS has mentioned that “UPDATE: USCIS has reached the congressionally mandated H-1B cap for fiscal year (FY) 2018. We have received more than the limit of 20,000 H-1B petitions filed under the U.S. advanced degree exemption.”

    looks like it does not reached 65k regular cap limit


    • Vara,

      If you read the news release here, it says ” U.S. Citizenship and Immigration Services has reached the congressionally mandated 65,000 visa H-1B cap for fiscal year 2018.”.

      Both caps have been reached.

  30. Last year USCIS announced the news on 7th April, that H1b cap (65,000+20,000)has been reached, and it will only accept non cap petitions after that. Cap is only 85k, then how number of applications were 2.50lakhs+. Do nt they stop accepting applications once cap 85k reached.

    • Suresh,

      That high number of petitions were received during first 5 business days. As the above regulation mentions they are obliged to accept it for 5 days. Hence the count was 2.5 lakh even though they eventually selected only 85K.

      • Receiving application for the first 5 business days has become a standard, and I see the same thing happened this year also. That means they must have received more than the required number of applications for CAP. So, Lottery is eventually mandated to pick from that list, Otherwise to go thru all received applications to figure out which one’s to pick up is a very long process. May take longer than months. So, I think, though they have not mentioned “Lottery”, that’s the easiest and quickest way out.

  31. I have seen,you moderate the comments and don’t allow them to be posted.Sometime you may not like things,but it’s the reality(even though hard felt).

    we all know reality behind h1b and why Indians are suffering,everyone here is mature and you should allows fair discussion without moderating comments for approval/rejection.

    This is oen of the major reason,people r on fire.

    • Sam,

      Remember April 2016 when you were posting racist and insulting comments towards one particular community. You were asked to stop but you continued to insult a particular community. You have been on the naughty list since. If you promise to behave, I will move you out off the naughty list.

      To refresh your memory, read this. You are the HonestOpinion poster. Although your comments were redacted due to their language, the responses from other uses can give you an idea why every one was (in your words) “on fire” …

      • Sairabh,

        You are no one to judge my comments.if you invoke me I can again go on fire for telugus and can expose all the frauds they fo.I have more information now. It’s they who have spoiled name of Indians in usa.

        • Sam,

          Seems like the past year has made no improvement. You still have the potty-mouth, and your comments will still be moderated. When they are acceptable, they will be posted and at other times they will be trashed.

  32. But think about it. If USCIS uses a different method (lets say job category) and denies H1B to all entry positions (which they already announced couple days ago), then what lawsuit can that person start if there is a valid reason to reject that person application? Even after being selected in the lottery that person would get his-her visa denied due to entry position. So basically what USCIS is doind is a preview filter. There is nowhere that laws say ANYONE who applies will get into the lottery, right? So why cant USCIS make filters previously to the lottery?

    • Debbie,

      Let’s say 100K petitions are received off which 10K don’t satisfy their random selection criteria (whatever that is). If they filter those out first, then they would select 85K from 90K petitions. However, if no prior filtering is done and USCIS keep the buffer for denied/revoked petitions, then also in the end 85K qualified petitions will be selected.

      USCIS can reject a petition w/o RFE for the reasons mentioned on the filing page. This include reasons like missing LCA, submitting single check for PP and regular filing fees etc. Everything else is not considered an outright rejection and petitioner is given a chance to respond. So if entry level positions are discouraged (remember their announcement doesn’t ban entry level computer programmers but puts more scrutiny on them), then they would be subject to RFE. It is very difficult to do all this before the lottery.

      • Saurabh,

        I keep seeing the word “buffer” that USCIS keep “buffer” for denied/revoked petition.

        Is buffer a part of the lottery process? Is there a source that can validate this? I am interested.


Leave a Comment