This information has been prepared for clients of the Law Offices of Jay I. Solomon.  You are welcome to browse, but should consult your own attorney for legal advice.

April 2015 - a cruel month

USCIS received 233,000 petitions in the first week of April  for cap subject H-1bs to start on October 1st.  The "cap" is 85,000, with 20,000 reserved for those with U.S. Master's degrees.

Intake for selected petitions has been completed - receipts have been mailed and some petitions have been adjudicated.   Very few petitions have been returned  as rejected as of the middle of June - but that process will accelerate.

So what were the odds?   Let's assume that USCIS accepted an additional 10% to account for denials and abandoned petitions.  That means 22,000 petitions were accepted for the Master's Cap. leaving 211,000 petitions competing for the remaining 71,500 slots (65,000 + 10%).   For those not selected in the initial Master's Cap sweep - and for those with bachelor's degrees - the odds of being selected are about 33%.

The 33% is near accurate for those with bachelor's degrees.   For those with U.S. Master's degrees, the odds are substantially better.   We don't know how many petitions qualified for the Master's cap, so we can't estimate how much better.


Half H-1b Cap petitions to be rejected!

updated April 10, 2014

The USCIS announced today that 172,500 H-1b petitions have been received and are now subject to the random selection process used by USCIS to select the petitions which will fill the 65,000 general category cap, and the 20,000 advanced degree cap exemption cap.

The random selection process is well underway - some fee receipts may start being issued as early as this week.  Given the number of applications involved, the receipting process will take at least several weeks.   We notify clients as soon as we know if their application has been accepted or rejected.

We do not yet know how many applications for the advanced degree cap exemption are included in the 172,500.  Those petitions will have two chances at selection. 

CHANCES OF SELECTION: Denial rates for H-1b petitions in the past have ranged from 11% to 29%.  We don't know what expected denial rate is factored into the number of H-1b petitions that USCIS accepts to meet the cap.  For argument, assume USCIS factors in a 15% denial rate.  This means it will accept about 23,500 applications to utilize the 20,000 advanced degree cap, and 76,500 to utilize the 65,000 regular cap. 

Once the 23,500 petitions are selected for the advanced degree exemption, there will be 149,000 petitions remaining from which 76,500 will be selected.  The "odds" of a single petition being selected in this process are just over 51%.  That is the apparent chance of selection for those without an advanced U.S. degree, as well as the chances of selection in the "second chance" lottery for those with that degree.

The chances of a single applicant with a U.S. Master's degree having their application selected are substantially greater than 51% - how much greater depends on how many applicants qualified for the advanced degree exemption.  We do not yet know that number.

H-1b Lottery Cap reached

On April 7, 2014, the USCIS announced that it had received more than sufficient H-1b petitions to meet the statutory cap, as well as the advanced degree exemptions.  A random selection process will be conducted among all petitions received by April 7 to chose which petitions will be accepted - and which will be returned. 

It will be at least several more weeks before petitioners know whether their applications were accepted or not.

Petitions will continue to be accepted for H-1b workers changing employers, and for H-1b workers from Chile and Singapore.  Petitions will also be accepted for new H-1b employment for workers who previously held H-1b status within the last six years, and have not used up their H-1b eligibility.

April 1, 2014 - H-1b "Lottery" Begins Again!

USCIS to accept new H-1b filings beginning April 1, 2014

On April 1, 2014, the U.S. Citizenship and Immigration Services will start accepting filings of new H-1b petitions for the fiscal year which begins on October 1, 2014. There is an annual "cap" on new petitions. Less than 65,000 can be approved subject to the cap.

An additional 20,000 petitions can be approved for "cap exempt"
aliens (i.e. those who have masters degrees from U.S. universities.)
Last year the "cap" was reached in the first week.  We expect this year to be the same.

Applications received after the date the cap is reached will be returned.  If the cap is reached in the first week of April, all applications received that week will be subject to a lottery selection process.

What this means to you:
If you have employees who will be needing H-1b sponsorship any time between now and October 1, 2014, you should be prepared to file an H-1b petition before the end of the first week in April 1, 2014.  This includes current non U.S. employees who are not now in H-1b status, and whose employment authorization will end before October 1, 2014.
Plan on filing April 1st for F-1 students with optional practical training to keep them employed after the expiration of their current employment authorization.  

A new H-1b petition will grant H-1b status no earlier than October 1, 2014.  An employee whose F-1 OPT  employment authorization expires before that date and for whom an H-1b petition is filed while they still maintain employment authorization, will have their employment authorization automatically extended through October 1, 2014 (or the date of adjudication, if their H-1b petition is rejected.)

Once the H-1b cap is reached, the USCIS will no longer accept new cap subject applications for H-1b status for the fiscal year which begins October 1, 2014 and ends on September 30, 2015.


What you should do now:
Identify any current employees who have temporary work authorization such as F-1, J-1, J-2, L-2, E or TN.   In some cases you may want to consider filing H-1b petitions for L-1a or L-1b employees to avoid the five or seven year limit on L-1 stays.  
Notify your recruiters that before offering employment to new graduates with optional practical training, they should verify that employment authorization extends at least until an H-1b petition may be filed on their behalf.  They should notify HR immediately so that an application for H-1b change of status can be promptly prepared and  filed. 
Contact our office.  As soon as you identify current employees or new hires who will need H-1b sponsorship, notify our office to begin process.

Petition for L-1b employees you want to keep beyond five years.  Because L-1b employees are limited to five years, and H-1b employees may be extended indefinitely once a preference petition is approved, consider filing petitions to change your L-1b employees to H-1b.  Don't wait until the fourth year - as the chances of any particular application being selected in the H-1b lottery in the future is not guaranteed, and may be less than 50% if H-1b cap demand increases to historic levels again.

Petition for some TN employees.  If you may be filing labor certification applications for employees currently in TN status, consider filing for change to H-1b status now.  "Dual intent" (immigrant and nonimmigrant) is consistent with H-1b status - not with TN.  Therefore, renewing TN status may be difficult once the labor certification/preference process begins.

Consider applying for H-1b this year for F-1 students eligible for STEM extensions.  Although STEM eligible students may be eligible to apply for H-1b status next fiscal year (April, 2015), filing this year will maximize their chances of "winning" the H-1b cap lottery.

The limit on new H-1b petitions does not apply to renewals or H-1b transfers.
You can continue to file petitions for aliens already in H-1b status who are changing employer, taking a second job, changing the terms of employment, or extending their stay - provided their previous employment was not exempt from the H-1b cap.

Employees of institutions of higher education, and of some non-profits affiliated with institutions of higher education may not be subject to the H-1b cap - until they change employers.  


An alien who previously had an H-1b within the last six years, and who has not left the U.S. for over a year, is not subject to the "cap. "

There are reserved H-1b numbers for people from Singapore and Chile.  If your employee is from Singapore or Chile, H-1b visas should be available well into next fiscal year.

Australians who would qualify for H-1b will often qualify for E-3 visas which are not subject to the same cap.

Canadians and Mexicans may qualify for TN visa status.

There is a six year limit on the total amount of time an alien can spend in the U.S. in H-1b status, unless ...
  • - they leave the U.S. for at least a year, in which case the six years starts over - and they must qualify under the cap again, or
  • - an application for labor certification is filed before the end of their 5th year in H-1b status, and
  • has not been withdrawn or denied, or
  • - a preference petition (I-140) has been filed and approved for the alien, and a visa number is not currently available.

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