Many readers here are very familiar with H-1B cap season and the lottery process. But for those new to the process this year, I thought I would shed some light on the basics, so you’ll know what to expect as the time draws near.
New H-1B visa petitions for nonimmigrant workers are filed with the United States Citizenship & Immigration Services (“USCIS”), beginning April 3, 2017. The annual H-1B numerical quota (“cap”) is expected to be reached in the first week of April. As per previous years, we anticipate demand to greatly exceed the cap, so a lottery system will be implemented by USCIS to select which H-1B petitions will be processed. Therefore, filing on April 3rd does not guarantee that a visa will be issued. If a petition is filed and not selected in the lottery, it will be returned with all government filing fees.
Background
The H-1B visa is an attractive option for employers that rely on the temporary employment of foreign professionals in the United States. Specifically, this visa category offers work authorization to foreign nationals employed in specialty occupations. A “specialty occupation” is broadly defined as a position requiring at least a bachelor’s degree in a specific academic field. Based on this definition, the H-1B visa captures a wide range of occupations.
(For more detailed information about what jobs may qualify for an H-1B visa, check out my eBook! You can download it for free at: http://immigrationgirl.com/get-your-free-ebook-from-immigrationgirl/.)
Congress has set its cap for new H-1B visas at 65,000 per fiscal year, for the period starting October 1stand ending September 30th. An additional 20,000 visas are reserved each fiscal year for applicants holding an advanced degree (Master’s or higher) from a U.S. institution. This limitation excludes international advanced degrees, and not all U.S. advanced degrees qualify for this exemption. The school issuing the degree must meet the definition of an institution of higher education, as defined in section 101(a) of the Higher Education Act of 1965.
Under the Act, an institution of higher education is an educational institution that is a public or other nonprofit institution. Additionally, the institute must be accredited or granted preaccreditation status. A university that is private AND for-profit, or unaccredited is not considered an institution of higher education according to this law. Therefore, if your school is a private, for-profit institution or is unaccredited, you should not file in the advanced degree quota. However, you can still file in the regular 65,000 cap.
Lottery
The demand for H-1B visas is expected to greatly exceed the cap by the first week of April. Once the cap is met, petitions will then be selected by random lottery. USCIS will first conduct the lottery for advanced degree exemption petitions that meet the definition discussed above. All advanced degree petitions not selected will then be included in the lottery for the 65,000 limit. In other words, advanced degree petitions get two chances at being selected.
For cap-subject petitions that are not selected through random lottery, USCIS will reject and return the petitions along with their filing fees. As in previous years, I will keep you updated on the progress of receipt notices being issued for petitions that are selected in the lottery, as well as the progress of rejection notices for those that didn’t make it. How early you receive notice usually depends on whether you selected premium processing, or fast-track service at an extra cost. Last year, premium processing petitions filed in the master’s cap started receiving email notifications in mid-April, compared to regular processing petitions for the master’s cap who received their notifications via snail-mail starting late April through mid-May.
Additional Concerns
Note that every year, there are some petitions that are filed on time but not included in the lottery because they were not properly filed. What would make a petition not properly filed? See: http://immigrationgirl.com/dont-be-one-of-the-1400-h-1b-petitions-that-were-rejected-before-the-lottery/.
Also, keep in mind that getting selected in the lottery is just the first step – it does not mean that your visa will be approved. Once selected, a USCIS officer could send a request for more documents (called an RFE), or even deny it. To learn about your options in the event of a denial, see: http://immigrationgirl.com/h-1b-selected-in-lottery-then-denied/
And, if there is any potential for loss of the H-1B job after filing but before October 1st, see http://immigrationgirl.com/opt-h-1b-and-job-loss-dealing-with-the-transition/
Finally, be aware of potential problems caused by travel. See: http://immigrationgirl.com/why-you-shouldnt-travel-between-april-and-october/
The Importance of Early Preparation
To maximize the chances that your H-1B petition will be filed correctly and on time to be included in the cap, Labor Condition Applications (“LCA”) should be submitted to the Department of Labor by the beginning of March, and petitions should be ready for filing on or before April 1, 2017. However, NOWis the time to prepare for the H-1B visa application process. Preparation includes assembling background and education documents, drafting and signing letters and forms, and submitting your LCA with the Department of Labor for certification. These tasks can be very time consuming, so early preparation is essential.