U.S. Citizenship and Immigration Services (USCIS) changed the H-1B lottery last year with the introduction of a requirement that employers first register their interest to file petitions for the fiscal year beginning October 1 in an online system. The lottery was conducted from the registrations instead of the full petitions, as had been done in previous years. Only those employers whose registrations were selected were able to file H-1B petitions with USCIS. This registration system will remain in place for 2021.
The registration system requires USCIS to open a period of registration for at least 14 days prior to April 1. Last year, the registration period opened on March 1 and closed on March 20. The results of the lottery were announced by notice to individual accounts two days later, and employers whose petitions were selected were able to file petitions beginning on April 1. The Trump administration published a final rule on Jan. 9, 2021, with an effective date on March 9, 2021, changing the rules for the selection of H-1B petitions. Instead of a lottery, the final rule would have required the selection of petitions ranked by salary, with petitions offering salaries at higher levels receiving preference.
As expected, the Biden administration will issue a final rule that will pause the implementation of this regulation. An advance copy of the Federal Register notice was released Feb. 4, 2021, which may be found on the American Immigration Lawyers Association website and will be published on the Federal Register website on Feb. 8, 2021. It will announce the effective date of the rule is being pushed back to Dec. 31, 2021.
The notice explains that the very short period before the effective date does not give USCIS sufficient time to develop or test the technology and infrastructure to implement the rule. The notice also recognizes that last year, a second lottery was conducted in August to use visas which had not been claimed from the first lottery. The notice further explains that an earlier effective date would create a situation where it is possible two different systems would be applied during the same year. To avoid this result, the effective date is paused to Dec. 31, 2021. The notice also recognizes the need for the new administration to review the policy and comments previously submitted. It appears that the delayed effective date will be sufficient time for the Biden administration to review the policy behind the regulation and if appropriate, follow the requirements of the Administrative Procedure Act and complete the process to rescind the wage-based rule entirely.
Update: On Feb. 5, 2021, USCIS announced that the registration period for the next fiscal year will open at noon (Eastern) on March 9 until noon March 25, 2021. We anticipate that the results will be available by Monday, March 29, 2021.