H-1B Cap Filings Expected to Exceed Annual Allotment for FY2015; What to Expect

U.S. Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions subject to the Fiscal Year (FY) 2015 cap on April 1, 2014. In April 2013, U.S. employers filed 124,000 new H-1B petitions in the first five business days. McCown & Evans predicts that there will be significant demand for new H-1B cap petitions this year, matching or surpassing 2013.

The H-1B cap (the numerical limitation on H-1B petitions) for FY2015 is 65,000. In addition, the first 20,000 H-1B petitions filed on behalf of individuals with a U.S. master’s degree or higher are exempt from the fiscal year cap of 65,000.

If USCIS receives more H-1B petitions than it can accept during the first five business days (April 1 to April 7), which is highly likely this year, USCIS will use a computer-generated random lottery system to select the petitions that will be considered for approval this fiscal year. Presuming that the random lottery is again required in 2014, USCIS will reject petitions that are not selected in the lottery, as well as petitions received after April 7, 2014. USCIS will first conduct a random lottery process for the petitions filed on behalf of individuals with a U.S. master’s degree or higher (advanced degree exemption), and then any advanced degree petitions not selected as part of the 20,000 exception will be considered among the random lottery process for the 65,000 limit.

H-1B petitions that are accepted in the lottery will receive a “receipt notice” by mail from USCIS. H-1B petitions that are rejected will be returned to the employer (or the immigration law firm), along with uncashed filing fee checks. It may take until the end of May 2014 to know for certain if a particular H-1B petition has been selected in the random lottery, or has been rejected.

H-1B cap petitions can also be filed with a Premium Processing Request (which guarantees review of the petition by USCIS within 15 calendar days and issuance of an approval, denial, or Request for Evidence), but the 15 day clock for adjudication of such Premium Processing H-1B petitions will likely begin only on April 15, 2014, based on last year’s experience. USCIS should issue receipt notices for all H-1B cap petitions filed with Premium Processing requested by the end of April 2014. Filing an H-1B petition requesting premium processing will not increase the chances of obtaining an H-1B under the cap. However, as noted above, one benefit of filing a cap subject H-1B petition with a request for premium processing is that a receipt notice will usually be issued faster than if filed under regular processing. Therefore, the petitioner and beneficiary should learn more quickly whether or not the petition has been chosen in the lottery.
Kelly McCown Speaks on Immigration Reform for FWD.us

On March 13, 2014, McCown & Evans partner Kelly McCown was an invited speaker on the topic of immigration reform at a Silicon Valley Policy Breakfast hosted by the advocacy group FWD.us. FWD.us is an organization started by key leaders in the tech community (including Mark Zuckerberg, Bill Gates, Sean Parker, and others) to promote policies to keep the United States and its citizens competitive in a global economy – including comprehensive immigration reform and education reform. FWD.us works to encourage Congress to focus on policies that maximize the potential of our country’s workforce to contribute to the knowledge economy. For more information about FWD.us and to get involved, link to http://www.fwd.us/.

 

Disclaimer

This information is for general use only. You should consult a licensed attorney for legal analysis and advice regarding the specific details of your case