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The U.S. Citizenship and Immigration Service (USCIS) announced that the 2021 H-1B lottery will be based on a random ranking and not the recently published wage-based ranking. The USCIS confirmed they are pushing back the implementation of the wage-based H-1B ranking process until the next H-1B filing season.
The H-1B lottery exists because Congress established an annual quota of 65,000 H-1B visas (regular cap), plus an additional 20,000 H-1B visas for foreign nationals who have earned a U.S. master’s degree or higher (master’s cap). In every year where the demand for H-1Bs has exceeded the quota, the USCIS employs a random ranking process for allocation known as the H-1B lottery.
In January, the government published a rule to change the lottery process from random to a wage-based ranking. The government’s authority to make this change is likely to be challenged.
An important exception to the cap on H-1Bs exists. Higher education institutions, non-profit organizations affiliated with a higher education institution, and nonprofit research or government organizations are all “cap-exempt” and may file H-1B petitions at any time. All other employers are limited by the H-1B annual quota.
The Big Picture
This rule implementation delay is good news for employers. They may now move forward confidently knowing that this year’s H-1B lottery will run the same way as last year. 2021 registration instructions are available on the USCIS site. Please contact your lawyer if you have questions.