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The Administration Plans to Change the H-1B Cap Lottery System

As part of the Fall 2018 Unified Regulatory and Deregulatory Actions and Regulatory Plan – the Administration’s list of goals for regulation and deregulation for the season – the current government has announced an intention to change the cap lottery system for H-1B filings.

Only a set number of new H-1Bs are permitted to be issued each year. Currently, complete petitions must be submitted starting at the beginning of April for an available H-1B under the following fiscal year’s H-1Bs, and a lottery is conducted among these complete cases – first for the 20,000 H-1Bs allotted under the US Master’s cap, and then for the remaining “general pool” H-1Bs (65,000, less carve-outs under treaties for nationals of Singapore and Chile).

Under the current system, complete filings must be submitted, but only upon selection in the lottery are the cases reviewed for substance and adjudicated. Unselected petitions, generally costing many thousands of dollars to prepare, are simply returned without review.

For many years, there have been suggestions and discussions about changing to a more simplified system where an employer seeking to petition for a cap-subject H-1B would submit a more basic notification if its intent to enter the lottery, and only if selected would an entire petition package need to be prepared filed. This would avoid the needless expense of filing complete petitions that would never even be reviewed if no lottery selection is made.

Such a change would require a new regulation amending the existing system, and issuing such a new regulation is the goal being set forth here.