This year, there is a realistic possibility that the number of H-1B petitions submitted in the first week of the filing period will be less than the total number available for the year. Last year, the government amended the H regulations to modify the “lottery” system for those years where enough applications are received at the very start of the filing season to exhaust the numbers.
The lottery system now in place allows petitioners to sleep a little more easily on the night of March 31, as all petitions physically received during the first 5 business days will be considered received on the “first” day, whether enough cases are filed to exhaust the cap on Day 1 or Day 5 of the filing period.
If the first 5 days pass without enough petitions being received to meet the cap, then a second rule applies: USCIS will determine the day on which they received enough cases to meet the cap, and will accept all cases received before that day, and reject all cases received after that day. For the cases received on the “final day” itself, USCIS will determine how many spots were left the night before, and conduct a lottery only among the cases received on the final day for the number of spots available on that day.
A couple of examples may help. I will use the basic 65,000 cap, even though the rule applies also to the separate 20,000 cap for holders of US Master’s degrees, and even though USCIS does not actually select exactly 65,000 cases (exactly how many cases they select is a topic for another post).
Example 1: the 65,000th case arrives on April 2, along with 500 more. USCIS continues to accept cases up until April 7 (the final day of the five-business day initial filing window), and gets a total of 100,000 cases in that period. The lottery is run on those 100,000 cases.
Example 2: the 65,000th case arrives on April 7, along with 500 more. USCIS rejects cases received on April 8th, and conducts a lottery on all cases received between April 1 and April 7 (only 500 are rejected, since only 500 cases more than 65,000 were received in the five business day period).
Example 3: the 65,000th case arrives on April 8, along with 500 more. USCIS accepts all cases received through April 7, rejects all cases received April 9 and after, and conducts a lottery among the 500 cases received on April 8.
Example 4: the 65,000th case arrives on some random day in the fiscal year – say, May 16, along with 500 more. USCIS accepts all cases received through May 15, rejects all cases received May 17 and after, and conducts a lottery among the 500 cases received on May 16.
