USCIS announced on Friday, April 5, 2013, that it received more H1B petitions than the combined annual cap quota of 65,000 regular and 20,000 Master’s degree H1B.  As a result, an “H1B lottery” will be held to determine which petitions would receive a precious H1B number for the upcoming year.  

Perhaps the best words came from USCIS’ announcement on Monday, April 8th: 

For the first time since 2008, U.S. Citizenship and Immigration Services (USCIS) has reached the statutory H-1B cap of 65,000 for fiscal year (FY) 2014 within the first week of the filing period. USCIS has also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the advanced degree exemption.   

USCIS received approximately 124,000 H-1B petitions during the filing period, including petitions filed for the advanced degree exemption. On April 7, 2013, USCIS used a computer-generated random selection process (commonly known as a “lottery”) to select a sufficient number of petitions needed to meet the caps of 65,000 for the general category and 20,000 under the advanced degree exemption limit. For cap-subject petitions not randomly selected, USCIS will reject and return the petition with filing fees, unless it is found to be a duplicate filing. 

The agency conducted the selection process for advanced degree exemption petitions first. All advanced degree petitions not selected were part of the random selection process for the 65,000 limit. 

As announced on March 15, 2013, USCIS has temporarily adjusted its premium processing practice. To facilitate the prioritized data entry of cap-subject petitions requesting premium processing, USCIS will begin premium processing for H-1B cap cases on April 15, 2013.  For more information on premium processing for FY 2014 cap-subject petitions, please see the related USCIS Alert

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted towards the congressionally-mandated FY 2014 H-1B cap. Accordingly, USCIS will continue to accept and process petitions filed to: 

  • extend the amount of time a current H-1B worker may remain in the U.S.;
  • change the terms of employment for current H-1B workers;
  • allow current H-1B workers to change employers; and
  • allow current H-1B workers to work concurrently in a second H-1B position.

Employers who have submitted a cap-subject H1B petition must wait and see whether they will receive a large envelope from USCIS containing their returned H1B petition or a “skinny” envelope that would contain their receipt notice signifying that the petition had “won” a number in this year’s visa lottery.  Feels like the anxious delay of college application responses; but with the opposite results. 

There have been discussions on whether it is right to use the lottery system for all of the petitions submitted from Monday, April 1st through Friday April 5th.  Shouldn’t employers who planned all year for the H1B filing period whose H1B petitions were received by USCIS on April 1st have priority over employers whose H1B petitions were not received until Friday April 5th?  I believe that would depend on who you ask.  

One thing is clear:  The H1B quotas are insufficient to meet the needs of today’s U.S. employers.  Prospective beneficiaries who do not receive an H1B number this filing period might very well think that they should have gone outside the U.S. and explored the immigration options that other countries would offer them.  The current employment-based visa system is simply not helping the U.S. retain talented and U.S. educated global recruits.