For the first time since 2008, a computer-generated lottery process was used to decide which H-1B visa cases get a green light.
U.S. Citizenship and Immigration Services (USCIS) announced April 5, 2013, that it received enough H-1B visa applications to reach the statutory cap for fiscal year 2014 and that a lottery would be conducted for H-1B petitions received between April 1 and April 5, 2013.
The agency received approximately 124,000 H-1B petitions during the filing period, including petitions filed for the advanced degree exemption.
On April 7, 2013, USCIS used a computer-generated random selection lottery to select a sufficient number of petitions needed to meet the caps of 65,000 for the general category and 20,000 under the advanced degree exemption limit.
For cap-subject petitions not randomly selected, USCIS will reject and return the petition with filing fees, unless it is found to be a duplicate filing.
The 85,000 visa cap specified for high-skilled workers—computer programmers, engineers, physicians, scientists and other educated workers with specialized skills—was reached in just five days. Of those visas, 20,000 are set aside for people with graduate degrees from U.S. universities.
“The cap being hit so quickly could mean good things for economic recovery, but, at the same time, it means many employers will not be able to hire the employees they need to keep innovating and growing their organizations and keep the recovery going,” said Justin Storch, manager of agency liaison at the American Council on International Personnel, a strategic partner of the Society for Human Resource Management.
“Since there’s now a lottery, this means that each organization has no guarantee that they will get any H-1B visas this year, even if they are looking to bring one of their most vital, highly sought-after foreign nationals into the U.S. economy,” Storch told SHRM Online. “It’s completely up to chance as to which people they will be able to hire and which people they have to turn away.”
The rush on H-1Bs this year may be a sign of an improving economy, but it’s also a reminder that the demand for highly skilled workers far exceeds the supply of available visas.
The outcome “shows that Congress’ prediction of the actual need for high-skilled professionals—last set in 1990—is outdated, inadequate and grossly miscalculates actual need,” said Angelo Paparelli, a partner in the business immigration practice group of Seyfarth Shaw, based in Los Angeles and New York City. “There were no metrics factored into the cap-setting then, and the situation is still the same today,” he told SHRM Online.
The H-1B cap lottery was last used in April of 2008, when the cap was reached on the first day. By comparison, in 2012 it took 73 days to hit the cap. It took 235 days to receive enough applications to fill the cap in 2011, 300 days in 2010 and 264 days in 2009.
“The quick exhaustion of the cap suggests that comprehensive immigration reform should include a market-based, flexible approach, either eliminating the H-1B quota entirely or providing that it automatically expands when quota inadequacy is obvious,” Paparelli said. In prior years when the cap was at 195,000 but employer demand was weaker, the cap was not reached, he noted. “Cap-setting, without review of empirical data, is no way to allow a dynamic economy to expand.”
USCIS will continue to accept and process petitions that are otherwise exempt from the cap, such as those for individuals seeking employment at universities and nonprofit research facilities. Visas will also be available for applicants filing for amendments, extensions and transfers, unless they are transferring from an exempt employer or exempt position and were not counted toward the cap previously.
The agency also announced that premium processing—an expedited 15-calendar-day processing service for a fee—will begin April 15. Cases filed under the program will be issued a receipt the week of April 15. The receipt indicates that the case has been selected in the lottery. It may take at least a month to receive notification of rejected cases, USCIS said.
Roy Maurer is an online editor/manager for SHRM.
Follow him at @SHRMRoy
ACIP and SHRM Release Solutions for Employment-based Immigration, SHRM Online Global HR, March 2013
Senate Bill Calls for Market-Based H-1B Cap, SHRM Online Global HR, February 2013
H-1B Cap Filing Season Begins April 1, SHRM Online Global HR, February 2013
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