The last ten years has proven that, as long as the U.S. economy is even barely chugging along, USCIS will receive more H1B petitions than it is statutorily allowed to adjudicate annually and that’s how we end up with a lottery.

 

The fiscal year begins on October 1st so, any H1B petition filed for this FY and approved, will authorize a beneficiary to assume employment with his/her petitioning employer on October 1st. USCIS will accept H1B petitions for October 1 start dates no earlier than April 1st. Given the high demand for H1Bs in recent years, USCIS has changed its approach to the lottery such that it accepts all petitions properly filed within the first five business days of the filing period (this year, April 1 – 5, 2014). If USCIS determines that it has received more petitions than it is allowed to adjudicate, USCIS will not longer accept new H1B filings post April 5th and will prepare to conduct a lottery on all petitions received between April 1 and April 5th. Hence, while it may come as a surprise, your petition does not absolutely have to arrive at USCIS by April 1st to be considered in the lottery; as long as it gets there by April 5th, you’re in.

 

Unfortunately, there’s no way to sugar coat the bitterness of the H1B lottery.  USCIS claims that it conducts the lottery by assigning every petition a random number. Once complete, a series of winning numbers are randomly selected by computer.   Some weeks after USCIS stops accepting petitions, your lawyer will begin to receive receipt notices. If your receipt is amongst those received, you’ve made it. Your petition has been selected in the random lottery.  Of course, that doesn’t mean that you have been granted H1B classification, it simply means that USCIS will actually read and adjudicate your petition for eligibility.

 

USCIS does not send out all receipts on the same date unfortunately. They arrive in dribs and drabs – a few today, none tomorrow, more the next day and so on – for weeks at a time. Eventually, the lawyer’s office begins receiving less and less receipts and then, one day, large manila envelopes from USCIS arrive instead. 

 

These are the rejected petitions. The petitions look exactly as they did when they were filed, except for a red or black stamp on the Form I-129 and the addition of one blue-colored sheet of paper explaining that, while the petition was received during the permissible filing period, it was not selected in the random lottery conducted by USCIS. 

 

It’s frustrating to say the least. No, it’s maddening! All respectable attorneys do all they can to ensure that each H1B petition is filed in a manner that makes the petition approvable. We strive to make legal arguments in support of the specialty nature of a particular position; demonstrate the requirement of a degree obtained in a field not traditionally associated with the offered position; we counsel the beneficiary; we counsel the petitioner; we work like H&R Block works the day before income taxes are due! We work so hard to ensure that all of the hundreds of cases that we will file during that first week in April are perfect…

 

But then the rejections arrive. There is really no way to express adequately the emotions your attorney experiences when your rejected H1B petitions arrives in the mail. Personally, I can’t recall ever having entered into an H1B rejection period without telling everyone who will listen how ridiculous this H1B cap is. After all, if the U.S. economy needs these specialty workers, why are we limiting them? Don’t they realize we’re affecting the U.S. economy?! Why do we let everyone come to the U.S. to attend college – learn our way of conducting business, our culture, etc. and then, we don’t let them stay to implement that which they have learned?! Instead, we force them to become assets to our competitors in the global marketplace? (Allow me to affirmatively and explicitly state that these are only my opinions and not those of anyone who may appear affiliated with this blog.)

 

My opinions derive not from my political leanings, but solely and precisely from my familiarity with our firm’s clients. Our potential H1B beneficiaries are college- educated, eager and altogether bright individuals. I want them to be America’s new immigrants. They can only be phenomenal assets to my country. 

 

To those who suspect or believe that these H1Bs are taking jobs away from Americans, stay tuned for my next installment about what it actually takes for a company to sponsor an H1B nonimmigrant. As an employer myself, I would much rather keep my $2,000+ in USCIS filings fees and not have to jump through all the hoops that the H1B petition requires. All other elements being equal, I’d definitely hire a U.S. citizen or permanent resident over a foreigner if I could; it’s costs me so much less and requires no additional work. No company petitions an H1B over hiring an equally qualified and available U.S. citizen or permanent resident.  Companies sponsor H1B nonimmigrants because they need them.