H-1B Cap predictions come true. Lottery will now decide the future of petitioners. (US Immigration Law)

by Domnic Francis on June 24, 2013

(US immigration law) US companies employing foreign workers in specialty occupations that demand theoretical or technical expertise in specialized fields such as scientists, engineers, or computer programmers are required to file for H-1B visas.

April 1st, 2013 marked the beginning of the filing period for H-1B petitions subject to cap limits for the fiscal year (FY) 2014, which runs from October 1st, 2013 to September 30th, 2014.  Based on the information and feedback by stakeholders, USCIS anticipated that by April 5th, 2013, it will receive more than 65,000 cap-subject H-1B petitions and more than 20,000 petitions filed on behalf of individuals with a U.S. Master’s degree or higher. In that case, H-1B cap petitions may be subject to a lottery for the first time since 2008. Therefore potential employers and the representing attorneys were advised to start their H-1B petition filing process with the USCIS as early as possible.

However, the issue under speculation was the questionable need for USCIS to consider a lottery system for the increased demand for H-1B.

Prior to recession, large IT companies who accounted for close to a quarter of the applications were the major petitioners for H-1B visa. In the present year, however, the US economy has witnessed a considerable recovery and if the IT sector has been subject to the same recovery, then one would expect that filings by large IT companies would once again dominate the current H-1B season. Hence, on a more certain note, it is the smaller IT companies which can throng the H-1B cap and trigger the need for a lottery system. Considering that last year the H-1B quota was reached on June 11th; it seems premature to presume that the US has recovered from recession to the point where the H-1B cap limit would be exhausted by the first week of April.

One cannot help but ponder the reciprocal questions that arise from this discussion. Have the small to mid-sized IT companies that may not have been regular petitioners for H-1B visa applicants recovered significantly enough to be expected to file so many new H-1B petitions so as to trigger the lottery? Well, in this case it may seem true because as predicted, the H-1B cap limit did exceed during the first five business days for the fiscal year 2014 (FY14). USCIS has confirmed that it received 124,000 H-1B cap-subject filings by April 5th 2013. Under such circumstances, USCIS will make use of computer generated lottery system to randomly select both advanced degree exempt and regular petitions for FY 2014. Cases not selected will be rejected and returned, along with the filing fee.

USCIS provides premium processing service for certain employment-based petitions and guarantees a 15-calendar-day processing time. Due to the possibility that the H-1B cap will be met in the first 5 business days of the filing season, USCIS had temporarily adjusted its current premium processing practice for cap-subject H-1B petitions, including H-1B petitions subject to the masters’ cap. Since the predictions have come true, premium processing for cap-subject H-1B petitions will begin on April 15, 2013.

When filing I-9 forms, employers are expected to prove that they are not discriminating against individuals on the basis of national origin, citizenship, or immigration status. They are also expected to not hire, recruit for a fee, or refer for a fee, individuals/aliens who are unauthorized to work in the United States. Failure to comply with the employee eligibility verification process may subject the employers to civil fines, criminal penalties as well as debarment from government contracts. This makes accurate filing of I-9 forms vital in the case of skilled workers being employed as well as the immigration law firm in charge.

Immigration law firms need a technologically advanced and reliable immigration management system which will help them access the information in a secure environment quickly and file the cases on time.


Domnic Francis
I am an Immigration attorney based out of Connecticut who has been using the I-9 compliance software to carry out I-9 audits for a couple of years now.
Domnic Francis
Domnic Francis

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