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51% of FY 2015 H-1B Petitions Rejected in USCIS Lottery
Employers now playing the waiting game

By Roy Maurer  4/14/2014
 
 

U.S. Citizenship and Immigration Services (USCIS) conducted a computer-generated random-selection lottery April 10, 2014, picking the fiscal year 2015 H-1B high-skilled guestworker visa cases to be processed for a work start date of Oct. 1.

Coming as no surprise to anyone, the agency reported that during April 1-7 (five business days) it received approximately 172,500 H-1B petitions for the allotted 65,000 cap-subject H-1B spots and 20,000 advanced degree exemption spots. This is the highest number of H-1B cap filings ever, topping the 163,600 petitions filed in fiscal year 2001.

After 20,000 U.S. advanced-degree cases were exempted by random selection, approximately 152,500 cases were left in the general lottery for 65,000 spots. This means about 51 percent of cap cases overall—approximately 87,500 H-1B petitions—were rejected for processing.

A nonadvanced-degree case had about a 43 percent chance of being selected. For cap-subject petitions not selected, USCIS will return the petition with filing fees, unless it is found to be a duplicate filing, the agency said.

“The numbers are astonishing,” remarked Justin Storch, manager of agency liaison at the Council for Global Immigration. “Employers that do everything right—file their cases at the first opportunity, dot all their I’s and cross all their T’s—still have a less than 50 percent chance of getting each H-1B they file for. This kind of unpredictability makes it extremely difficult to do advance planning and fill the positions they need in the U.S.”

Premium Processing Change

In anticipation of the expected high level of H-1B cap filings, USCIS announced that premium processing for H-1B cap cases would begin April 28 instead of April 1. The agency provides an expedited case-processing service for certain employment-based petitions and guarantees a 15-calendar-day processing time for a $1,225 fee.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted toward the fiscal year 2015 cap. USCIS will continue to accept and process petitions filed to:

  • Extend the amount of time a current H-1B worker may remain in the United States.
  • Change the terms of employment for current H-1B workers.
  • Allow current H-1B workers to change employers.
  • Allow current H-1B workers to work concurrently in a second H-1B position.

Planning for Rejection

Employers should begin assessing alternative options while waiting to see whether a particular case was accepted for processing. Alternative visa options include:

  • For Canadian and Mexican professionals, TN visas under the North American Free Trade Agreement.
  • For intra-company transferees, L-1 visas. If an organization has foreign operations, this visa permits employees to transfer to the U.S.-affiliated company in a similar position if they have worked abroad for the foreign parent, subsidiary or affiliate continuously for at least a year within the preceding three years as an executive or manager or in a specialized-knowledge capacity.
  • If the employer is enrolled in E-Verify and the individual has a degree in a science, technology, engineering or math field, the 17-month optional practical training (OPT) extension.
  • For those who may qualify under extraordinary ability criteria, the O-1 visa.
  • For nationals of Australia, the E-3 visa.
  • For nationals of Chile or Singapore, the H-1B1 visa.
  • For essential employees if the company and foreign national share the same nationality, the E-2 visa.
  • For those in F-1 status, continue with F-1 studies and look at internship opportunities under curricular practical training (CPT).
  • For individuals entering a structured training program, the H-3 visa.
  • For individuals who can be categorized as an exchange visitor, the J-1 visa.

Waiting Game

Until the receipt notice or rejection package is received by a petitioning employer, it is not possible to know whether any particular case has been accepted for processing. Storch said that employers should plan on waiting for quite some time. “In many cases, it may even be a month or two before they get word on whether their case was selected or rejected in the lottery. After that, processing could take several more months, and some cases might not be processed before the October 1 start date for most H-1B employees.” 

Roy Maurer is an online editor/manager for SHRM.

Follow him at @SHRMRoy

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