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AILA Liaison Provides Clarification of H-1B Lottery System

The American Immigration Lawyers Association clarified how the lottery system will be determined this year:

Members have questioned whether the regulation governing conduct of the H-1B random selection (e.g., “lottry”) process published by USCIS on March 24, 2008 (73 FR 15389 (3/24/08); AILA InfoNet Doc. No. 08031937 (posted Mar. 25, 2008)) will apply to the H-1B lottery this year. USCIS has confirmed that if USCIS determines that they have received a sufficient number of cases in the first five business days of April to reach the cap, then the “lottery” will be based on petitions received all five days. USCIS will not begin to issue receipts, however, until a determination is made that sufficient H-1B petitions have been received within the first five business days of April, ending April 7, 2009. After the “lottery” is conducted, the USCIS will then issue receipts for those cases which are selected, and the receipts will likely all have the same receipt date, April 8, 2009. USCIS has indicated that guidance will be issued to explain that all petitions received between April 1, 2009, and April 7, 2009, will have the same receipt date. This is important for those F-1 beneficiaries whose OPT will expire between April 1st and April 7th so that Designated School Officers will know that an H-1B petition was timely filed and that a beneficiary may be eligible for cap-gap employment authorization or status based on the actual filing date.

As the regulation provides, if USCIS concludes that insufficient H-1B petitions have been received within the first five business days of April, USCIS will continue to receive and accept petitions until the day upon which USCIS concludes that a sufficient number of petitions is reached. USCIS will then conduct the lottery for those cases received on the last day. While USCIS believes that the cap will be reached before October 1, 2009, they are not able to make any further predictions, although they have heard from various stakeholder groups (including AILA), that fewer petitions are expected to be filed during this H-1B cap season.

Cite as “AILA InfoNet Doc. No. 09032560 (posted Mar. 25, 2009)”