March 26, 2014

USCIS Predicts H-1B Cap-Subject Petitions Will Be Subjected to Random Lottery; Announces Premium Processing to Start on April 28

April 1 is the first day U.S. Citizenship and Immigration Services (USCIS) will accept H-1B cap-subject petitions for next year's allotment of visas for foreign national professionals in specialty occupations. Cap-subject H-1B visas become available each year on October 1 — and filings with USCIS can be made no sooner than six months in advance. Last year, USCIS was required to conduct a random lottery for available H-1B visas. This random lottery was conducted on April 7, 2013, and was the first random lottery since April 2008. USCIS predicts another record year of H-1B cap filings next week, and that another random lottery will be conducted this year.

USCIS Predicts H-1B Cap-Subject Petitions Will Be Subjected to Random Lottery

In its March 25 announcement about H-1B petitions subject to the fiscal year (FY) 2015 numerical cap, USCIS anticipates that it may receive more than 65,000 cap-subject H-1B petitions and more than 20,000 H-1B petitions for individuals holding a U.S. master's degree or higher when the H-1B filing period opens next Tuesday, April 1. In the March 25 announcement, USCIS states the following:

USCIS anticipates receiving more than enough petitions to reach both caps by April 7. The agency is prepared to use a random selection process to meet the numerical limit. Non-duplicate petitions that are not selected will be rejected and returned with the filing fees.

See USCIS Release about FY 2015 H-1B Cap.

Last year, on April 7, 2013, computer-generated random lotteries for both the master's cap and regular cap were conducted. After these lotteries were conducted, USCIS began notifying applicants who were selected in the lottery process. If such lotteries are required for FY 2015, it is expected that USCIS will follow similar procedures as conducted last year. Under the random lottery system, USCIS will first conduct a random lottery of the 20,000 H-1B cases eligible under the master's cap exemption. For those cases that are not selected as one of the 20,000 under the master's cap exemption, those cases are then included in the random lottery for the 65,000 allotment.

Under current rules, USCIS will accept all H-1B petitions properly filed during the first five business days before conducting a random selection process, so that petitioners need not file H-1B petitions exactly on April 1. As outlined above, the filing period will close on April 7, and the random lottery will be conducted after this date. It is anticipated that USCIS will conduct a random lottery (if needed) after April 7.

USCIS Announces Premium Processing for H-1B Cap Cases to Start on April 28

In addition to predicting that this year's H-1B numerical cap may be subject to a random lottery, USCIS also indicated that premium processing for H-1B cap cases will begin on April 28. USCIS announced the following:

Due to the high level of premium processing receipts anticipated, combined with the possibility that the H-1B cap will be met in the first five business days of the filing season, USCIS has temporarily adjusted its current premium processing practice. To facilitate the prioritized intake of cap-subject petitions requesting premium processing, USCIS will begin premium processing for H-1B cap cases no later than April 28, 2014.

See USCIS Release about FY 2015 H-1B Cap.

Under this approach, USCIS will accept Form I-907, Request for Premium Processing Service and the $1,225 premium processing fee for H-1B cap cases — but processing and adjudication of FY 2014 H-1B cap cases will not begin until April 28. Keep in mind that USCIS announced last year that premium processing of cases would not start until April 15, 2013. However, in practice, USCIS started to process cases (including sending premium processing email receipt notices) immediately after the random lottery on April 7, 2013. Therefore, even though USCIS indicates that premium processing won't start until April 28, 2014, it may follow the same approach as last year and start processing cases sooner. Keep in mind that cases filed without premium processing will take longer to be processed, and it could take at least two months or more to receive the receipt notice from USCIS.

Additional information about the H-1B cap can also be found on our previous legal update from January 17, 2014, as well as from USCIS in its update about H-1B processing for the FY 2015 cap season. As more information is released about the FY 2015 H-1B cap, we will provide additional updates.

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