Is H1B Lottery Mandatory ? Is there an official rule ?

Yes, as of the now ( Apr 2017),  H1B Lottery is mandatory. The guidance is that if USCIS receives more petitions than the required number cap that is mandated by Congress, they will need to conduct random selection, aka H1B Lottery.   You can check the official Federal Register Document . You can search for “Random”  in the document to find it.  Below is the actual text from the document.

As discussed above in Section VI, USCIS also is amending 8 CFR 214.2(h)(8)(ii)(B) to authorize random selection of H–1B numbers in FY 2005, FY 2006 and future fiscal years when USCIS determines that the numerical limits in a particular category will be reached.” Pay attention the future fiscal years

There are many applicants, who are frustrated with the delay in processing by USCIS and making speculations that there will not be lottery and President Trump Administration will be looking at the Merit based system, some say that they will look at the highest salary, some claim that Indian companies will be banned…many speculations….But all those claims are wrong at least as of today in April 2017.  There will be H1B Lottery, if USCIS has received more than required petitions for their congressionally Mandated 65,000 for regular and 20,000 for masters quota.

What do you all think with the speculations ?

9 thoughts on “Is H1B Lottery Mandatory ? Is there an official rule ?”

  1. There will be H1B Lottery, if USCIS has received more than required petitions for their congressionally Mandated 65,000 for regular and 20,000 for masters quota.
    But what if this is not the case ?
    Will be still be having a lottery ? I guess not, and I strongly feel that (given the way it is going in India), it won’t cross the above mark !

    So, in that case, NO LOTTERY, Right ??

  2. Lottery is not mandatory even if the number of application exceeds the cap. ”to authorize…” means that USCIS CAN use (and not MUST use) random lottery when number of apps exceeds the cap. It t doesn’t state this is the only method determining which applications to approve.
    Random lottery is a much easier method than merit (as an example) for USCIS and I assume this is why it has been used in the past. Under this adminstration things might change.
    There is high chance that things remains as they were, as USCIS might has not be ready by April time slot to making the selection in any other way. However the cancellation on premium processing might an indication that each application will be carefully examined.

    • Unfortunately, that’s the only method that is approved. We all can try to be optimistic about other processes, but the reality is that, if they bypass anything that is a regulation, they will end up in many lawsuits and it will not help them…so, I guess they will go with the standard lottery…USCIS may not have bandwidth to carefully assess everything before the lottery, they will do it after the lottery to prevent fraud…

      • Not sure I agree.
        The regulation are loose and give USCIS the freedom to perform the selection in a way they find fit, including using random lottery.
        Though many lawsuit may come, if they won’t use the lottery, I don’t think they stand a chance in court, just by claiming they used a certain method before and decided to change it. As I see it, they can chose any other method as long as they can prove it is not discriminating. Picking candidates based on experience and wage, for an example, is not discriminating.
        Remember this is an expert visa, which should be used when qualified candidates can not be found. Yes, there are the minimal requirements of a bachelor degree and minimal wage, but that doesn’t make a an engineer with 2 years of experience as fitted as an engineer with more than 10 years of experience. There is probably a salary difference between the two as well.

        • Frankly, I wish, there was a better way select by USCIS…the sad part is that the average current processing time for H1B regular processing is all time high at over 250 days….Just look at this from work load perspective, they are not able to process them just with 85,000 petitions…Now, if there were to look at every petition more than 85k just to look at basics and then sort out… They do not have the resources and also they lost revenue without the premium processing…it costed them at least 50 to 75 million dollars…there are a lot of federal budget cuts, etc…. To add, there was a case that was filed in the past against USCIS that random selection aka lottery was not the fair way of doing it and it passed from local to even federal court, but the ruling was that Lottery was the only fair way and the case was striken down….anyways, I only wish you are right…but, I do not see USCIS has a choice of budget and manpower or regulation to drive the ideas you mentioned…We will know this week…Hope you are right and I am proven wrong !

          • Unsurprisingly there was a lottery this year.
            All I said they are not obligated by law to perform it.
            Good luck

  3. The fact that it is in CFR indicates that it is not a law, but a regulation.
    https://en.wikipedia.org/wiki/Code_of_Federal_Regulations https://en.wikipedia.org/wiki/United_States_administrative_law
    A law is made by the house/senate and signed by the president. An administrative rule / regulation is made by the agency and approved by the president – so an executive order can change it. But USCIS has announced that they have held a lottery, so the new executive order is unlikely to affect it.

    https://www.whitehouse.gov/the-press-office/2017/04/18/presidential-executive-order-buy-american-and-hire-american

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