According to a USCIS News Release:  “USCIS received nearly 233,000 H-1B petitions during the filing period, which began April 1, including petitions filed for the advanced degree exemption. On April 13, USCIS used a computer-generated random selection process, or lottery, to select enough petitions to meet the 65,000 general-category cap and the 20,000 cap under the advanced degree exemption. USCIS will reject and return all unselected petitions with their filing fees, unless the petition is found to be a duplicate filing.”

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For the past few years, our office has seen an uptick in employer demand for H-1B skilled worker petitions.  In fact, this year we filed more H-1B cap-subject petitions than any other since we started our firm fifteen years ago.  We are hearing similar stories from our colleagues.  It is therefore likely that the cap will be exhausted tomorrow.  The regulations require that the USCIS accept petitions for the first week and if the cap has been exceeded, it will conduct a random lottery to determine which cases will be adjudicated.  A few facts of interest:

1.  There are 65,000 cap-subject H-1Bs available for the fiscal year plus an additional 20,000 for those who have US Master degrees (Master Cap);

2.  If the number of H-1B petitions and Master Cap petitions received exceeds the cap, then  the government will first exhaust the 65,000 and include all eligible petitions and then conduct a lottery for the 20,000 Master Cap.  If a Master Cap petition is not selected in the general lottery, it will be entered into the separate Master Cap lottery.

3.  Premium Processing for cap-subject H-1Bs may not begin until May 11, 2015, therefore the 15 day clock would start on that date.

4.  Having filed an H-1B petition using the Premium Processing Service does not increase the odds of the case being selected in the lottery.

5.  For cases that are accepted, the USCIS will process the filing fee check(s) and stamp the receipt number on the back of the check.  Therefore lawyers or employers who paid by the filing fees by check can check their bank statements online to know whether petitions have been accepted.  A USCIS Receipt Notice will of course follow in the mail.

6.  For cases that are rejected, the entire petition and supporting documents, along with the filing fee checks will be returned.

As I write every year, it seems counter-intuitive that our country resorts to a lottery where we end up asking the best and brightest skilled workers from around the world to either return to or remain in their home countries.  This includes talented scientists, architects, software engineers and others who could contribute so much to their employers and to the country as a whole.

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According to a USCIS News Release:  “On April 1, 2015, U.S. Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions subject to the fiscal year (FY) 2016 cap. U.S. businesses use the H-1B program to employ foreign workers in occupations that require highly specialized knowledge in fields such as science, engineering and computer programming.

The congressionally mandated cap on H-1B visas for FY 2016 is 65,000. The first 20,000 H-1B petitions filed for individuals with a U.S. master’s degree or higher are exempt from the 65,000 cap.

USCIS expects to receive more petitions than the H-1B cap during the first five business days of this year’s program. The agency will monitor the number of petitions received and notify the public when the H-1B cap has been met. If USCIS receives an excess of petitions during the first five business days, the agency will use a lottery system to randomly select the number of petitions required to meet the cap. USCIS will reject all unselected petitions that are subject to the cap as well as any petitions received after the cap has closed. USCIS used the lottery for the FY 2015 program last April.”

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According to a USCIS News Release:  “U.S. Citizenship and Immigration Services (USCIS) Director León Rodríguez announced today that, effective May 26, 2015, the Department of Homeland Security (DHS) is extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident (LPR) status. DHS amended the regulations to allow these H-4 dependent spouses to accept employment in the United States.”

This is great news, however it is odd is that the dependent spouses will have far greater employment mobility and options than the principal H-1B beneficiaries.

It is important to note that not all H-4 spouses will be eligible for employment authorization.  In order to qualify, the principal beneficiary must either :  (1) have an approved I-140, Immigrant Petition for Alien Worker, or (2) have been granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act (H-1B extended beyond six years).

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The USCIS will begin accepting cap-subject H-1B petitions on April 1, 2015.  If the past few years is any indication, the 65,000 regular and 20,000 US Master caps won’t last long and will be subject to a random lottery.

There are so many traps that a novice H-1B filer needs to be aware of, just to be sure the H-1B petition makes into the lottery.  The USCIS is very unforgiving of seemingly minor errors and will reject a petition at the mail room stage before it even gets to be included in a lottery, let alone reach an adjudicating officer.  Once the petition has been accepted under the cap, the next step requires proving that the position is a Specialty Occupation and that the beneficiary qualifies for the position.  Again, there are many traps for the unwary.

Finally, behind the scenes, the employer is required to maintain a Public Information File (PIF).  The USCIS charges a $500 anti-fraud fee for all initial H-1B petitions.  A portion of these funds go towards inspectors who visit H-1B sites to ensure that employers are in fact abiding by the myriad of H-1B regulations including:  (1)  verifying that the beneficiary is indeed performing the duties of the offered position, (2) confirming the wage being paid to the beneficiary is the wage stated in the petition and LCA and is the greater of the actual or prevailing wage, and (3) ensuring the maintenance of the PIF file.

My suggestions?

1.  Hire an immigration attorney with H-1B experience.

2.  Start the process as early as possible, preferable before March 1, 2015.

3.  Gather all of the documentation requested.

4.  Ask lots of questions to ensure that, as an employer or beneficiary, you are doing things the right way.

It is too bad that qualified, talented foreign nationals need to first win a “lottery” before they can be considered to work in positions for which US companies need them.  The frequently propagated myth that  such beneficiaries take American jobs is unrealistic considering that employers must pay legal and filing fees, be subject to additional scrutiny and pay foreign nationals the often inflated “prevailing-wages” for these positions.

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FLAG Immigration Protest

According to a USCIS News Release:  “…the Department of Homeland Security will not begin accepting requests for the expansion of DACA tomorrow, February 18, as originally planned. Until further notice, we will also suspend the plan to accept requests for DAPA.”

The injunction issued by a Texas District Court judge is temporary and is to allow time for the states that have filed a lawsuit objecting to President Obama’s Executive Orders on Immigration to argue their case.  This has no bearing on the final outcome of this matter and most legal scholars agree that the President’s order was well within his legal authority.

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