USCIS Regulation for H1B Lottery – Will we have it for FY 2018 ?

In Apply H1B Visa by Saurabh228 Comments

I have been debating for a while whether to write this article or not, as there has been some animosity against me off late and writing anything more at this stage is like opening Pandora’s box. Still few readers have asked for more opinion on this topic of H1B Lottery, and so I decided to make this a formal post. Hopefully the discussion will remain civil instead of passing judgment on the blog and its writers.
There are 2 school of thoughts with regard to H1B Lottery for FY 2018 Quota:

  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 my opinion ? In my view, USCIS would continue to do what they have been doing for last several years. If they want to make a fundamental change to the selection process, then that needs to be called out. Is the distribution going to 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.? Providing transparency is beneficial to all – those who support random selection and those who are against it.

USCIS Regulation – Why I think H1B Lottery WOULD Happen for FY 2018 Season ?
Here is why I think a random selection would happen (read it again WOULD happen and not SHOULD happen) – USCIS regulation calls for it. First time lottery was conducted was for H1B FY 2006. This was the time when cap used to remain open beyond the 1st week of April.  Check out USCIS FY 2006 Press Release . 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.

Federal Register Authorization for H1B Lottery or Random Selection :
Now, when you go and try to find  the actual document: Federal Register at 70 FR 23775, which is a long one, but if you search for text “random” you would land on the relevant part of the document. This is what it says. “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 Federal Register Regulation on H1B Lottery

USCIS Regulation on Acceptance of H1B petitions and H1B Random Selection:
Next, as you go and try to find  the actual document on USCIS website :  8 CFR 214.2(h)(8)(ii)(B) and also navigate to section of USCIS Numerical Limits Sec. 214.2(h)(7) . Below is the actual text and highlighted area

USCIS Random Selection Regulation DetailsIn a nutshell, below is what USCIS H1B Numerical Limits Regulation Document says:

  • The cap would remain open for at least 1st 5 days. For FY-18, 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 upon historical data.

What’s the Conclusion :
All this gives me enough confidence that random selection would (again WOULD and not SHOULD) still happen for H1B Visa FY 2018 quota. I didn’t see any revisions to the above regulation and expect it to be the source of truth. If USCIS decides to ignore the laid down regulation and use a different method to select petitions, they would be opening themselves up to some lawsuits. But who knows maybe that’s what USCIS wants. In any case, we would know by next week what’s really up with USCIS.
Your thoughts ?

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Comments ( 228 )

  1. H1b second attempt

    Hi Sourab,

    Can you please clarify me on below situation,

    In 2017’s lottery, my petition got picked and it went to RFE but my Employer could not satisfy the requirements for it, then it went to Rejection finally.

    So this year, my current employer filed my H1B this year also, If my petition is getting picked this year, then While approving my current petition, Does it have any effect from previous year’s Rejection ?

    Regards

  2. KP

    Hey,

    I have a question about CAP GAP.

    I am working for Employer X now and my H1 is visa sponsored by Employer Y and it is picked in Lottery this year. I will apply for CAP GAP shortly. During CAP GAP, Can i continue to work for employer X till Oct 1, 2017 or I have to start working for Employer Y from the day my CAP GAP starts ?

  3. Ash

    Hi saurabh,

    I got selected through lottery this year. I’m AD. This is my 5th time in a row applying for the lottery. However, in last 5 years I have worked out on good backup plan life vs silicon valley job. I’m not sure yet if I just want to give up my current situation and go back to usa on h1b and stay in limbo mode again for GC etc.. What are my options if I want to retain this h1b for future ?

    1. administrator
      Saurabh

      Ash,

      Once H-1 is approved and its past Oct, you should be able to use this petition as reference for a future cap-exempt petition. However, it is also possible that USCIS may issue RFE asking for proof of cap, especially if the original petition has been revoked by the employer. A more concrete way is to enter US on H-1B at least once, work for sometime and then park it for future cap-exempt purpose.

  4. lucky charm

    Hi ,

    I am happy to share out of 4 H1B petitions filed in AD I got 3 selected so should I withdraw other two or just wait for an approval of all 3 and decide.

    Hope fully others too get selected in the lottery

    Luck charm.

      1. administrator
        Saurabh

        luckycharmFRAUD,

        The user is a troll. Few days ago he posted about applying 10 applications with 4 selections.

  5. ven

    I filed 3 petitions this time and I enquired my collage regarding sevis update. They emailed me with 2 receipt numbers saying that in pending state. but my employer is saying cheque hasn’t been cashed yet. can we relay on sevis information.

    1. administrator
      Saurabh

      Ven,

      If the DSO has checked the SEVIS record correctly, then you can rely on those receipt numbers. You should be able to check them online as well. Maybe not a good idea to let employer know yet as you don’t know which receipt number belongs to which employer.

        1. administrator
          Saurabh

          3Petitions,

          I understand where you are coming from. For a leveled playing field, it would be better for each candidate to file just 1 petition.

          1. 3Petitions

            Yes,

            Coming for a place where this is my last chance to be selected. It pains watching people misuse the system and making the playing field skewed. I have always filed my applications genuinely without misusing the system. At least I get a good night’s sleep. I really wish the wrongdoers must be brought to book and punished.

          2. 3Petitions

            pretty ballsy of people like Ven to claim that they filed 3 applications. I really would like to know how has he managed to do this?

      1. Paul

        Wow. You’re just as pathetic as these scum applicants. You’re actually helping them and advising them on how to continue their fraud and bring all Indians to shame.

        I’m guessing you probably reached US through these multiple petitions through these consultancies also.

        This is the last time I visit this forum. I do not want to visit a website administered by fraud people.

        1. administrator
          Saurabh

          Paul,

          So there are 2 aspects to this – legal and ethical. Applying through multiple employers is legally allowed but is ethically questionable. My initial response was purely from legal standpoint. There are already enough folks on this forum to give lectures to him on what he has done. I don’t always get the liberty to wear that hat and have to take an unbiased approach.

          In hindsight its 50-50 whether I should have told him to discuss the receipt number w/ his employer or not.

          Pretty judgmental to call me pathetic and call out my immigration history without knowing me. Can you tell me how I committed fraud, so that I can correct myself in future.

          1. Paul

            Feel free to delete my comment. It just upset me to see you helping him out on how to continue exploiting the system.
            I’m sure you’re a nice guy and have personally not exploited the system. But you know it’s a crunch time on this forum- so why did you feel the need to advice him on exploiting be system?

          2. administrator
            Saurabh

            Paul,

            That’s ok. No worries! I understand this is do or die situation for lot of folks and emotions often take toll on us. Good luck!

        2. ven

          hi paul, I genuinely filed 1 petition for the last 2 times .So this is do or die situation for me so I applied 3 petitions. what is wrong in applying . it is legal according to uscis . I spent 45000 $ on my masters. I am not applying from out side of the country like you . if you are really upset with filing h1 go and talk to companies like tcs,infosys and ctz who al are filing thousands of h1b visas for the candidates who are not qualified also . every body do it for a reason . so don’t judge people .

          1. teachVENaLEsson

            Ven,

            I applied genuinely last time and this time as well. Do or die for me too. I too spend thousands of $$$ on my masters here. so please stop giving excuses and justifying the immoral act that you have carried out. Simply shameful. People like you need to be taught a lesson by authorities and punished.

          2. Ven

            Dear paul , if you want to teach lesson for multiple petetions then you have to become Dr K.A Paul All the best.

          3. HelpNeeded

            Dear Ven,

            Which field do you work in? IT? How did you manage to get 2 companies to file for you? Suggestions/advise will be appreciated.

    2. DisgracefulVen

      I hope your petitions are revoked. People like you should not be allowed to apply EVER AGAIN. Wasting 2 spots from 85,00.0. You should be ashamed of yourself Ven. Disgrace.

    3. ChachaBhatija

      Maybe your ‘collage’ is a collection of your pictures. Maybe you can ‘relay’ on that. Please do not RELY on your COLLEGE Ven. How did you get 2 companies to sponsor you man? Fishy and mysterious.

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