US Citizenship and Immigration Services (CIS) has confirmed in a recent communication with the American Immigration Lawyers Association (AILA) that, if an H-1B petition "lottery" needs to occur for FY10 H-1B petitions, US CIS

will again employ a "five-business day" receipt window in conducting the lottery. This means that H-1B petitions received by April 7, 2009, will be eligible for the H-1B "lottery," if it is necessary to have one. However, receipts for H-1B cases will not be issued until after the "H-1B lottery" has been conducted. If a lottery is necessary, those cases selected for processing in the H-1B lottery are all expected to have a receipt date of April 8, 2009.

As background, the H-1B "lottery" has been necessary in recent years because CIS has received significantly more H-1B petitions than the maximum allowed under the H-1B cap quota. In recent years, the "cap" has been reached on the first day that employers are eligible to file. The first eligible filing date for new cap-subject H-1B petitions is April 1st, six months before the beginning of the new fiscal year begins on October 1st.

Under current CIS regulations, if CIS receives a sufficient number of petitions to reach the numerical limit on any one of the first five days of the filing period, a random "lottery" will be conducted to determine which employer's petitions will be considered by CIS. If there is a lottery this year, an announcement will be issued by CIS.

While CIS announcement would enable filing through Tuesday, April 7, 2009, we recommend filing all H-1B petitions on the first available date (April 1) and leaving nothing to chance.