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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Author: Bradley Maged

I'm Brad Maged, an immigration lawyer in Boston, Massachusetts. I help people who want to live and work in the United States and companies that wish to employ them. This blog provides opinion and information on developments in immigration law. Thanks for reading!

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