The H-1B Filing Season – a Post-Mortem

Immigration Attorney Donald ParkerBy: Donald Parker

The 2014 H-1B filing season opened on April 1st with a bang. In the first 5 days of April, the U.S. Citizenship and Immigration Services (“CIS”) received approximately 124,000 visa petitions for new H-1Bs – well exceeding the 65,000 quota for non-U.S. Master’s degree cases and the 20,000 quota for U.S. Master’s degree holders. By regulation, CIS is required to accept for processing all H-1B petitions filed during the first 5 business days of the H-1B filing season. In the event that CIS receives more petitions than the available annual quota during the initial filing period, it will make an announcement that it is no longer accepting H-1B petitions and will hold a lottery to determine which cases will be accepted for processing. This year, CIS announced on April 5th that it received sufficient visas to fill the quota, and on Sunday, April 7th it held the required lottery.

Over the course of the following weeks, we, like other immigration practices began to see Receipt Notices trickle in for those of our cases that were selected in the lottery process. Beginning in the second week of May, with all selected cases having been receipted, the CIS began to return the cases of those who were not as fortunate in the lottery.

In our practice we filed a record number of cases – even more than had been filed by us in 2008, the last year when an early lottery needed to be held. Of that number, all of our U.S. Master’s degree cases were accepted for processing. This suggests that while CIS received more than 20,000 U.S. Master’s degree cases, the number that they received was likely not significantly in excess of the cap. With respect to our non-Master’s cap cases, we received Receipt Notices for approximately 72% of our filed cases suggesting that the USCIS received approximately 100,000 non-U.S. Master’s cap cases.

Of the cases that were not receipted, many of the affected workers had other options to remain in the U.S. (e.g. STEM extensions of OPT, and eligibility for H-1B alternatives like the O-1 visa and the E-2 visa). Still, as is the case for many thousands of people around the United States, several of our clients are having to deal with the reality that there will be no more new H-1B visas available this year and few good alternatives that fit their workers.

The Immigration Reform legislation that is currently working its way through the U.S. Senate will do much to remedy the shortage of H-1B visas. But, it faces many challenges including making it safely out of the Senate and then trying to find some reconciliation with the less controlled House of Representatives. Time will tell whether the U.S. government is prepared to replace the “luck” of a lottery with a sensible system and adequate visa numbers to meet the needs of U.S. employers looking for the strongest and most capable, professional labor force.

For questions or more information on this topic, please contact any member of our Immigration Law Group.

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