H-1B Lottery Season Approaches: “Luck is not as Random as You Think”*

Each year, on April 1st, the U.S. Citizenship and Immigration Service (“USCIS”) begins accepting H-1B applications for the upcoming fiscal year.  H-1Bs are available for professionals in specialty occupations holding a bachelor’s degree or higher. There are 65,000 new H-1B visas available each year plus an additional 20,000 for those who have obtained a U.S. master’s degree or higher.

While it may seem that Wednesday, April 1, 2015 is far-off, there is never enough time to prepare, so it is highly recommended that employers and potential H-1B applicants begin the process of preparing their petitions as early as possible.  Starting the process now has the following benefits:

  • Sufficient time for the necessary document gathering,
  • Preparation of the application without a last minute frenzy,
  • Time to identify and address any potential problems, and the
  • Ability to consider and strategize on other immigration benefits that may be available, should the application not be selected in the lottery.

Our office is happy to accept H-1B cap-subject cases for Fiscal Year 2016 (“FY16”) at this time.

The Inevitable H-1B Lottery:  There are 65,000 regular H-1B visas plus 20,000 more available for those applicants with advanced-degrees earned in the United States.  H-1B cap-subject cases are filed beginning on the first business day in April and under USCIS regulations, the minimum filing period for the H-1B lottery  is five business days.  If the H-1B cap is reached or exceeded within the first five days, USCIS stops accepting H-1B petitions and conducts a lottery. During the lottery, USCIS will first divide the applications into two categories: those with US advanced degrees and those without. Then it will select 20,000 random applicants from the advanced degree category. Any applications not selected, are then added to the other category, and a second lottery for 65,0000 applicants is selected. Applicants will know the end results of the lottery by mid May, 2015..

This year, we expect that the cap will be reached within the first five days of filing and a lottery is likely to take place.  Since 2008, the number of cap-subject filings has steadily increased each year and we  expect that trend to continue and worsen this year.  In FY14, USCIS received over 120,000 H-1B filings in the first five days and in FY15, that number increased to 170,000 filings in the first five days. Between the pent up demand from last year and an improving job market, we expect the number of H-1B applications this year to be over 200,000.

For Employers:  We recommend that employers begin to review which of their employees that may need to be included in the upcoming H-1B cap-subject filing as early as possible. The following categories should be considered:

  • Recent college graduates who are employed pursuant to F-1 Optional Practical Training (OPT).
  • L-1B Workers at Multinational companies who are nearing their five-year limit on stay in the U.S.
  • L-2 employees working on EADs who would like to hold their own non-immigrant status
  • New hires from abroad who are not eligible for any other employment based non-immigrant status

For Foreign Nationals:  It is important that everyone involved in the H-1B process begin to prepare early.  Foreign national workers should contact their employer to initiate discussion about H-1B cap-subject filings as to prepare for the process, collect documents, and ensure the proper course of action.  In the event that an employer is unfamiliar with the H-1B filing and process, this will provide them with time to seek legal guidance.

Getting Started:  To begin the H-1B process for a foreign national, it is helpful to have as much information and documentation as possible, so that it can reviewed thoroughly.  Generally speaking, the following is required from the employer: job title, job description, salary, and location.  From the employee, the following is required; a copy of  the passport identification page, any visas, I-94 records, educational documents, curriculum vitae, and, evidence of any immigration status held in the U.S.

With the help of an experienced immigration attorney, getting a head start on the H-1B cap season can mean the difference between being granted an H-1B or trying again next year.  If you have any questions regarding the H-1B visa requirements, the  lottery process or require representation in H-1B matters, please contact us as soon as possible.

* “Luck is not as random as you think. Before that lottery ticket won the jackpot, someone had to buy it.”  – Vera Nazarian, The Perpetual Calendar of Inspiration.

About vbimmigration

For More Information Call 215 979 1840 Immigration Law Partner at Duane Morris, LLP. 20 years representing companies and individuals in all aspects of immigration law. H-1Bs, L-1s, TNs, PERM, Global immigration; compliance; working visas; green cards; consular processing citizenship and deportation.
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