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USCIS Announces FY H-1B Lottery; Will Congress Enable an H-1B Fix for Calendar Year 2013?

April 5, 2013

As predicted, the government announced this afternoon that, as of today, it has received enough fiscal-year, regular-cap H-1B petitions to exhaust FY numbers within the first five days of filing. The government also related that it received a sufficient number of FY advanced degree filings to meet the 20,000 additional set aside. As a result, and by regulation, the USCIS will hold a computer-generated lottery of all FY-2014 H-1B visa petitions received from April 1 through April 5, the first five days of the FY filing period. While the government's announcement relates that it will provide more information next week on the lottery and the number of visa petitions received, based on previous years when there was a lottery, lottery winners should expect receipt notices in the next few weeks. Lottery losers should expect to receive consolation prizes of un-cashed filing fee checks to be returned along with those H-1B petitions. Remember that the USCIS' adjudication clock for FY Hs filed by premium processing doesn't start ticking until April 15, once all of the FY H-1B dust has settled.

This is the first time in the past five years that there has been a run on FY H-1B numbers - last year, it took about 10 weeks to exhaust FY H-1B numbers, and the year before, about 30 weeks. Annual H-1B caps have been in place for more than two decades, with brief respite periods of annual limits being raised to 115,000 in the late 1990s, and then to 195,000 for fiscal years 2000 through 2003. We sure hope that this year's lottery will propel Congress' Gang of Eight to act swiftly with its comprehensive immigration reform legislation promised to be introduced in late April and that Congress this year will increase the annual H-1B quota to be more realistic given increased demand. Employers that are hiring lateral H-1B candidates or that qualify for cap-exempt filings remain unaffected.

As we have advised, employers should continue to keep in mind the following:

  • There are still cap-subject FY H-1Bs remaining for Singaporean and Chilean nationals.
  • Don't recycle those returned FY H-1B petitions just yet, as there may be a congressional fix this year. The Gang of Eight's promised immigration reform legislation, along with other bills, may include increased FY H-1B numbers up to 115,000 or more, depending on demand. We may expect some trade-offs including higher filing fees and some other restrictions.
  • Students graduating this spring who have Employment Authorization Documents (EADs) based on Optional Practical Training (OPT) should have employment until next spring, allowing employers a second bite at the FY H apple next year. Cap-gap relief should still be available next summer.
  • Employers hiring many STEM (science, technology, engineering and mathematics) graduates of U.S. institutions may want to consider enrolling in E-Verify, given that Congress has hinted that it may become mandatory anyway, in order to get increased opportunities to employ foreign nationals in these fields. The F-1 STEM employees of E-Verify employers are eligible for an extra 17 months of F-1 OPT work authorization, for a total of 29 months of post-graduation employment. The government keeps expanding the list of eligible STEM degree programs.
  • Many Canadian and Mexican nationals are eligible for TN professional visas under NAFTA.
  • Australian professionals are eligible for E-3 professional visas.
  • Employers may employ interns or trainees under various J exchange programs.
  • High-level hires who are extraordinary in their fields may qualify for O-1 visas.

We will continue to keep you updated with immigration developments and opportunities. Please contact us if you wish to further explore any of these options.

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