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H-1B Petitions are in the Hands of USCIS … So Now What?

These last few weeks of “H-1B season” have been a particularly busy time for immigration practitioners. As of Tuesday, April 1, U.S. Citizenship and Immigration Services (USCIS) began accepting H-1B petitions for the 2015 fiscal year.
Under a law that hasn’t been touched by Congress in years, there are only 65,000 new slots available for employers to hire university educated foreign professionals, plus another 20,000 for employers hiring foreign nationals who have graduated from U.S. advanced-degree programs. The allotment of H-1B’s has been exhausted earlier and earlier within each fiscal year. Last year, more than 130,000 H-1B applications were filed by employers for 85,000 slots on the very first day of filing, resulting in the now infamous lottery.
Once your H-1B petition is in the hands of the government, here is what you can expect:
Reaching the Cap
USCIS reports that cases will be considered accepted on the date the service center receives a properly filed petition with the correct fee. USCIS will not rely on the date that the petition is postmarked. USCIS anticipates receiving more than enough petitions to reach both caps by April 7, 2014. The agency is prepared to use a random selection process to meet the numerical limit. Petitions that are not selected will be rejected and returned with the filing fees.
The H-1B Lottery
The term “lottery” is colloquial to help users understand the process. USCIS will use a computer-generated algorithm to randomly select the petitions counted against the cap.
• Upon receipt of an H-1B petition, USCIS will label each case with a unique identifier.  Once labeled, the petitions are grouped into two sets: “Master’s” quota and “Regular” quota.
• If more than 20,000 petitions are received for Master’s quota, USCIS will run a computer-generated random selection process (the H-1B lottery) across all the Master’s petitions pool to pick the 20,000 petitions to meet the Master’s cap for FY2015.
• All the H-1B Master’s petitions that do not get selected in the lottery would then be placed in the “Regular” pool of petitions. Assuming that the total number of petitions in the combined pool are over 65,000 petitions, a computer-generated process will randomly select and the petitions that will qualify for the Regular quota cap limit.
• USCIS will send the list of all selected petitions to the service centers, which will then proceed with next level of processing for adjudication.
Premium Processing Cases
Due to the high level of premium processing receipts anticipated, combined with the possibility that the H-1B cap will be met in the first five business days of the filing season, USCIS has temporarily adjusted its current premium processing practice. To facilitate the prioritized intake of cap-subject petitions requesting premium processing, USCIS will begin premium processing for H-1B cap cases no later than April 28, 2014.
What if My Petition is Not Selected?
Based on previous trends, it may take up to a month or so to receive notice of rejected cases for cases that are not Premium Processing.
There may be alternative visas available, depending upon the particular circumstances. There may also be ways to hire or retain those for whom H-1B status is or will be necessary. For example, if a foreign national has already been counted against the H-1B cap in the past six years, or will simultaneously be working for a cap-exempt employer (e.g., university or nonprofit primarily engaged in research), an H-1B petition may be filed immediately. (And of course, a cap-exempt employer can petition for an H-1B visa at any time.)
In addition, a student on F-1 status who has optional practical training valid beyond April 1, 2014 may be able to have his/her status and employment authorization extended until an H-1B change of status petition can take effect (cap-gap).
Please contact Berardi Immigration Law today to discuss alternative immigration options for you or your employees.