The H-1B Lottery 2016: What To Expect?

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By Elizaveta "Lisa" Eisenberg, Esq.
| Immigration

This time of year, many American companies are getting ready to submit H-1B petitions which, if approved, will allow them to employ foreign professionals starting October 1 2015 (the beginning of the fiscal year 2016).  Some companies seek to sponsor foreign graduates of U.S. universities, while others want to bring new workers from abroad. In this blog post, I will answer questions about the so-called “H-1B Lottery” that I hear most frequently from my corporate clients.

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Why do we have to play the lottery to get an H-1B visa?

The U.S. immigration law limits the number of new H-1B visas to 65,000 per year (“Regular Cap”) plus an additional 20,000 visas per year for foreign graduates of U.S. universities who earned master’s or higher degrees (“U.S. Master’s Cap”). In addition, 6,800 slots within the Regular Cap are reserved for citizens of Chile and Singapore.

On April 1st alone, the very first day of filing for the upcoming financial year, USCIS typically receives H-1B petitions substantially in excess of its cap limits.

To resolve this situation, USCIS instituted the “H-1B Lottery” system. The filing remains open for the first five business days in April. If the caps are reached by then (which is anticipated this year), the filing closes at the end of the 5th business day. Consequently, USCIS sorts the submitted petitions and sets aside U.S. Master’s Cap petitions. The next step is the actual “lottery,” a computer-generated random selection. First, USCIS selects 20,000 petitions from the U.S. Master’s Cap pool. Then, the U.S. Master’s Cap cases that are not selected are added back to the Regular Cap pool and participate in random selection for the Regular Cap slots. 

What are the chances to win the H-1B Lottery this year?

No one knows about the chances definitively; this depends on the number of applications to be submitted this year. Last year, the overall chances were close to 50/50 because USCIS received approximately 172,500 petitions including both “Regular Cap” and “U.S. Masters Cap.” As we explained above, people with U.S. advanced degrees have a better chance than all other applicants. This year, the general anticipation is that there will be even more applications than last year.

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Does having a U.S. Masters Degree guarantee success in the H-1B Lottery?

No, it does not. However, being a graduate of a U.S. graduate program increases your chances of winning the H-1B Lottery.

When should we start preparing our H-1B filings?

Now is a good time. If you have not done so yet, you should select a qualified business immigration attorney and start the preparation process as soon as possible. Keep in mind that a mandatory prerequisite for the filing of the H-1B petition is a labor condition application (LCA) certified by the Department of Labor. DOL usually processes LCAs within seven business days, but you will need to account for crunch-time technical issues and other delays. You also need to have enough time to gather all required documents, to discuss the matter with your lawyer, address all possible concerns, and obtain evaluations and translations for you candidate’s education credentials (for graduates of foreign universities). 

For business immigration lawyers, the H-1B season is similar to the tax season for accountants. If you wait until later, the lawyer of your choosing may already be booked to capacity. Remember: if you miss the deadline, the next chance to file a cap-subject H-1B won’t present itself until April 1, 2016.

When will we know whether or not our case is selected in the H-1B Lottery?

Last year, USCIS started issuing receipts for accepted cases on April 11 and continued to do so through mid-May. We should anticipate approximately the same time frames this year. When the case is selected, premium processing petitioners get an email notification, and all others have to wait for an official receipt notice in the regular mail. Also, if USCIS cashes your checks for filing fees, it means that the case is accepted for processing.

If your case is not selected, you will get no special notification. Eventually, USCIS will send you back the unopened petition with a simple cover letter. Because of the large volume of applications, it may take USCIS a few months to return all rejected petitions.

When will we know whether our case is approved?

It depends on whether you request regular processing or premium processing, which requires an additional filing fee of $1,225. USCIS will specifically announce the start day for premium processing of H-1B Cap cases (last year it was April 28). Within 15 calendar days of that date, premium processing petitioners will receive approvals or requests for additional evidence, if USCIS finds a deficiency in a petition. (Outright denials are very rare). Regular processing of an H-1B Cap case can take a few months.

Does rejection in H-1b lottery affect the applicant’s chances to get another work visa in the future?

No, it does not. I have had clients who successfully received different types of visas after losing the H-1B Lottery, as well as those who received an H-1B the following year.

Do we get our money back if our case is not selected in the lottery?

The government does not take any fees for petitions that are not selected in the H-1B Lottery. The only money "at risk" is what you spend on preparing the petition - attorney fees, evaluation, translations, shipping, etc.

President Obama issued a set of executive orders on November 20, 2014. Didn't these measures increase the H-1B quota?

Unfortunately, they did not. The President's executive orders on immigration reflect an effort to streamline the immigration process for some foreign professionals, entrepreneurs and investors, but the H-1B crisis has not been addressed at present.

If you are planning on filing a H-1B petition, consult a lawyer through Priori Legal

Want to work with Elizaveta "Lisa" Eisenberg, Esq. on your H1-B matter? Include her name in your request!

 

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