H-1B Cap Hit – Now What?

Posted on: April 7th, 2015
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USCIS told us that if there were more applications than the 65,000 regular cap and 20,000 advanced degree cap cases received during the first five business days of April, they would hold a lottery for those that filed and close applications for those seeking professional workers for the 2016 federal fiscal year. And, to no one’s surprise, they announced earlier today that they have received more than enough applications to have to hold a lottery.

We don’t know yet how many applications were received. I half-jokingly tell people that the H-1B lottery is an important economic barometer for the US. Since employers are requesting start dates of October 1st, the number of H-1B applications filed tells us what employers believe the employment situation will be like later in the year. I’m guessing that the number of applications filed will be in excess of last year and possible a record.

If you were one of the many who are being sponsored for employment in those pending H-1B applications, you may be wondering what happens next. Hell, many immigration lawyers wonder since USCIS tells us very little. But here’s how I believe it works. Those who are privy to any details that contradict or will add to what I’m saying, please feel free to chime in in the comments area.

USCIS assigns temporary numbers to all of the cases that are properly received at the two USCIS service centers and those numbers are used in two lotteries. Advanced degree cases are segregated from the other cases and are put in to an initial lottery for the 20,000 advanced degree slots. Individuals not selected in that initial lottery are then grouped with everyone else in a second lottery held shortly afterwards for the 65,000 regular cap.

USCIS begins notifying petitioners of selection in the lotteries as soon as they complete data entry. Last year, it took about a week for the first cases to get entered. For the first few days, we should only be seeing master’s cap receipts. These will not be case decisions – just receipts. Shortly afterwards, we’ll start to see regular cap cases added to the mix. Expect USCIS to take about a month to announce that they’ve completed data entry and have mailed out all of the receipts. You won’t be able to confirm that your case was selected or rejected, however, until potentially one to two weeks later when you will either have a receipt or your package is sent back indicating you were not selected in the lottery.

How USCIS determines how many cases to process has been a matter of some controversy. USCIS apparently determines the number based on its estimate on the number of applications it will likely deny. But if USCIS overestimates that number, they do not reopen the H-1B application process, something that appears to contradict immigration law.

Like I said, this is what I believe the process will be. If others have more to add, let me know.