Many of you have asked me regarding the H1B 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. We will cover these aspects in this article.
USCIS Official Regulation on H1B Lottery
In general, H1B Lottery would very likely happen because, 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.
Official 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 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
- The 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 upon historical data.
In the past there were confusions among many regarding the H1B Lottery as USCIS did not state anything about lottery in their press releases… Sometimes there were debates that it may not happen, in this context there are 2 school of thoughts with regard to H1B Lottery on this topic:
- It is understood that random selection will happen and doesn’t need to be explicitly called out in USCIS news releases.
- 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 on H1B Lottery ? 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. As of now, 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.
Update : USCIS has proposed a rule to change the way they accept H1B petitions, still it is not final yet. Check out H1B Proposed rule for Pre-registration of H1B, Lottery
Your thoughts ?