Almost Two-Thirds of H-1B Petitions Rejected in USCIS Lottery

By Roy Maurer Apr 13, 2015

U.S. Citizenship and Immigration Services (USCIS) received a record-breaking 233,000 H-1B cap-subject petitions for high-skilled guestworker visas, a 35 percent increase over last year’s 172,500 filings. The agency held a random-selection lottery April 13, 2015, picking the fiscal year 2016 H-1B cases to be processed for a work start date of Oct. 1, 2015.

USCIS had announced on April 7, 2015, that it had received enough H-1B petitions to reach the statutory cap of 65,000 visas and more than the limit of 20,000 H-1B petitions filed under the advanced degree exemption.

This means about 63.5 percent of cap cases overall—approximately 148,000 H-1B petitions—were rejected for processing. A nonadvanced-degree case had about a 30.5 percent chance of being selected. All unselected petitions along with their filing fees will be rejected and returned, unless the petition is found to be a duplicate filing, the agency said.

“These numbers are staggering,” said Justin Storch, manager of agency liaison at the Council for Global Immigration (CFGI). “Employers have barely a 1-in-3 chance of getting each H-1B for which they file. This is tragic for employers who need talented foreign nationals to contribute to the growth of their organizations and the U.S. economy as a whole,” Storch remarked.

“Once again, we have new and overwhelming evidence that Congress must pass legislation that includes a market-based H-1B cap to respond to demand or they will continue to stifle economic growth,” said Rebecca Peters, director and counsel for legislative affairs at CFGI. “Given the fact that employers intensely disapprove of the arbitrary cap, it is time for Congress to take a step forward for innovation and economic growth. The Immigration Innovation Act (S. 153), which contains an H-1B market-based solution, is a good start,” she said.

Premium Processing

Premium processing for H-1B cap cases will begin April 27, 2015. USCIS will continue to accept and process petitions that are otherwise exempt from the cap, the agency said. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted towards the FY 2016 H-1B 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.

“Employers probably won’t have final answers on whether all their cases won the lottery until late May, maybe even June. Employers need to prepare for notifying employees when they get the results and think about contingency plans, if any are available,” he said.

Roy Maurer is an online editor/manager for SHRM.

Follow him @SHRMRoy

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