USCIS H-1B Lottery Process Will Remain Unchanged for the Following Year

USCIS H-1B Lottery Process Will Remain Unchanged this Year

Written by Taher Kameli & Chathan Vemuri

In what is sure to be welcome news for H-1B visa applicants, the US Citizenship and Immigration Services ( USCIS ) announced that the H-1B electronic registration and lottery process for this year would be identical to that of last year, as opposed to the Trump administration’s proposal to make the lottery of H-1B visas dependent on wage levels for H-1B positions.[1] Under the Modification of Registration Requirement for Petitioners Seeking to File Cap-Subject H-1B Petitions rule (Modification Rule), H-1B application cases would have been prioritized according to the wage level of the position in question.[2] This would have seen an increased selection rate for applicants to jobs with Level III and IV wage levels, ultimately favoring higher-paid workers for the H-1B program.[3] Those hiring entry-level workers would face difficulties from having to hire applicants with high wage level requirements.[4] Effectively, this would have pressured employers looking to fill entry-level positions to look to American workers who would not have such high wage requirements, as covered in earlier blog posts about the Trump administration’s changes to the H-1B visa program.

By staying with the standard H-1B lottery format, the USCIS also gives room to the Biden administration to review this Final Rule and evaluate it before proceeding with it.[5] Indeed, if the issues identified with the H-1B Lottery Change Modification Rule were found to be insurmountable, such as privileging those applications with higher wage level expectations and directing employers to look for cheaper American workers, the Biden administration may decide not to proceed with the Modification Rule at all.[6] The USCIS also gets to avoid various technical challenges necessarily resulting from implementing the Modification Rule.[7] These would include having to redesign its external lottery registration system and internal algorithms to select candidates.[8] There would have also been great difficulty in reverting to a paper-based selection process under the Modification Rule, expectedly in light of the great delays and backlogging due to the pandemic that would result.[1]

All in all, staying with the traditional lottery process will be a welcome respite for H-1B applicants worried that they would not be able to get the visas required to work where they have to absent highly specialized training beyond what they already have. And the time to review and ponder the Modification Rule may lead the Biden administration to discard it entirely, removing a key challenge to employing a foreign workforce in high demand industries for which there is no market in the American workforce.

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[1] Id.

[1] Murphy, Maggie, USCIS Announces H-1B Lottery Process Unchanged, Nat’l Law Rev. Vol. XI No. 40 (Feb. 5, 2021) available at https://www.natlawreview.com/article/uscis-announces-h-1b-lottery-process-unchanged

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Immigration Lawyer Blog San Diego, H-1B Lottery Format Unchanged for 2021, Feldman & Feldman Assoc., APC (Feb. 4, 2021) available at https://immigrateme.com/h-1b-lottery-format-unchanged-for-2021/

[8] Id.