H-1B Visa Lottery Update for 2021

Alerts / February 10, 2021

For employers planning to sponsor candidates in this year’s H-1B visa lottery, U.S. Citizenship and Immigration Services (USCIS) has announced it is retaining the same electronic registration process for the H-1B visa cap lottery it introduced last year. It has postponed the final rule issued on Jan. 8, 2021, that would have dramatically changed the allocation of new H-1B visas.

H-1B visas allow foreign nationals to work in specialty occupations that typically require a bachelor’s degree or higher. H-1B visas are highly coveted, but USCIS only issues 85,000 new ones each year, except for certain H-1B petitions that are exempt from the cap. When USCIS receives more requests for H-1B visas than it can issue under the cap during the initial filing window – which has been the trend since 2013 – USCIS conducts a random lottery to select which H-1B petitions to adjudicate.

Using the same process established last year, petitioning employers seeking new H-1B visas for Fiscal Year 2022 (starting Oct. 1, 2021) will follow an electronic registration process. Registrations, which include basic information about the petitioning employer and each candidate, will be e-filed through the USCIS website for a filing fee of $10 per candidate. The registration window this year will run from March 9 to March 25.

After registration closes, USCIS will conduct two separate lotteries: First, a general lottery will be held for 65,000 H-1Bs. All candidates are eligible and considered for the general lottery. Second, USCIS will conduct an additional lottery for 20,000 candidates with graduate degrees from U.S. institutions of higher education.

USCIS will notify petitioning employers of selected candidates on or before March 31, 2021. For lottery winners, employers will have 90 days to file a complete H-1B petition on behalf of each candidate. Those not selected initially will remain eligible for selection later if the H-1B cap limit is not met due to rejections, withdrawals, denials or abandoned filings. Last year, additional registrations were selected in August.

On the whole, the electronic registration process was a marked improvement over previous years’ lottery processes, saving employers money, time and energy. The new system also provided quick lottery results. On the other hand, the ease and low cost of registration led to the submission of nearly 275,000 unique registrations in 2020 – by far the most cases ever submitted and an increase of more than 37% from 2019. This resulted in a historically low selection rate of 31%.

Despite the net benefits of the new system, it may be short-lived. In its waning days, the Trump administration announced a new rule to establish a preferential selection process based on offered wages, which would replace the current random lottery. The new rule would prioritize awarding new H-1B visas to the highest-paid candidates. The Biden administration has postponed the new rule to at least Dec. 31, 2021, and may shelve it indefinitely, but a final decision has not yet been announced.

Authorship Credit: Matthew Hoyt and Alan deVries

Baker & Hostetler LLP publications are intended to inform our clients and other friends of the firm about current legal developments of general interest. They should not be construed as legal advice, and readers should not act upon the information contained in these publications without professional counsel. The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you written information about our qualifications and experience.