The H-1B Visa Lottery Is Over. Now What?

Immigration attorney Andrew Lerner answers employers’ most common questions

Roy Maurer By Roy Maurer May 1, 2018
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Andrew R. Lerner, senior counsel to Kauff McGuire & Margolis LLP.

​U.S. Citizenship and Immigration Services (USCIS) conducted its annual lottery April 11 to determine which H-1B cap-subject petitions will be processed for work beginning Oct. 1.

The agency announced April 5 that it had received enough petitions to fill the current year's quota—20,000 H-1B visas held for those with master's or higher degrees from U.S. universities and 65,000 H-1B visas held for those with bachelor's degrees.

Andrew R. Lerner, senior counsel to Kauff McGuire & Margolis LLP, a boutique law firm in New York City specializing in employment, labor and immigration law, discussed with SHRM Online the typical questions petitioning employers have at this stage of the process, including frequently asked questions about premium processing and H-1B visa alternatives.

[SHRM members-only online discussion platform: SHRM Connect]

SHRM Online: How long will it take before employers know if their petition was accepted?

Lerner: Employers typically receive notification of being accepted or rejected for the H-1B lottery between the end of April and the end of June, with most employers receiving notification from USCIS by the end of May. The agency has already started notifying employers whose petitions were selected.

SHRM Online: USCIS recently suspended 15-day premium processing of H-1B cap cases. How long will it take for cases to be processed under the standard processing time?

Lerner: In the past few years, processing times for H-1B petitions selected in the lottery have been quite erratic. Once an employer receives a receipt notice confirming that an H-1B petition that they filed has been selected for processing, they can expect to obtain action on that petition anywhere between three to five months from the date they receive the notice. There are, however, cases that are processed in a few weeks following issuance of a receipt, and cases that linger for periods of between five to six months and sometimes longer.

SHRM Online: If a petition was chosen for processing, will employers have the ability to take advantage of premium processing at a later date?

Lerner: Yes, but likely not for at least several months. According to USCIS, the suspension is expected to last until Sept. 10. USCIS will continue to accept premium processing requests for H-1B petitions that are not subject to the fiscal year 2019 cap and has indicated that it will notify the public before premium processing for H-1B cap-subject petitions is resumed. Once resumed, employers will have the option of converting their H-1B petitions filed under standard processing over to USCIS' premium processing unit.

SHRM Online: What options does an organization have if its case for a current employee is not selected and the worker's employment authorization is set to expire soon?

Lerner: Employers may have several options available, depending upon the employee's current immigration status. If the employee is currently employed under F-1 optional practical training (OPT), there may be an opportunity to extend the employee's period of OPT employment. This will depend upon whether the student obtained a degree in a STEM (science, technology, engineering, and mathematics) field and whether the company is enrolled in the government's E-Verify program. If the answer to both questions can be answered in the affirmative, you may be able to extend the employee's employment for an additional two-year period. General information regarding the requirements for obtaining a 24-month STEM OPT extension can be found on the USCIS website and also on the Department of Homeland Security's STEM OPT hub.

If a 24-month STEM OPT extension is not available, the employee working under F-1 authorized OPT employment may also have the option of continuing with his or her studies in pursuit of an advanced degree. This can create other opportunities for continued employment, depending upon the educational institution involved and the flexibility of the school's curriculum. This possibility should be discussed with the school's designated school officer—the school official usually having the most knowledge regarding to what extent employment opportunities can be built into the school's degree requirements.

Additionally, if upon hire the employee presented a valid employment authorization document based upon his or her status as the spouse of an "E" or "L" visa holder, the employee may also be able to extend his or her own employment authorization by filing an application to extend the employment authorization, so long as the spouse continues to be employed in E-1, E-2, E-3, or L-1 status.

Depending upon the employee's personal circumstances and the size and scope of the company's operations, there may also be other employment-related options available. For example, the company may have offices in other countries, and may have the ability to temporarily transfer the employee abroad, or the employee may have told you that he or she is in a serious relationship with a U.S. citizen and that a green card case has already been filed on the employee's behalf. In any event, all of the above options should be explored with competent immigration counsel, sooner rather than later, in the event that the petition filed on behalf of the employee is not selected for processing, or that, even though selected, there are concerns about the likelihood of success in having the H-1B petition approved.

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