Number of cap-subject H-1B petitions filed with U.S. Citizenship and Immigration Services hit a historic high in 2016

On April 12, U.S. Citizenship and Immigration Services (USCIS) reported that during the five day long filing period it received a record number of cap-subject H-1B petitions – over 236,000 – for the federal fiscal year of 2017. As Congress limited the number of H-1B visas available for foreign workers per each fiscal year to a total of 85,000 visas – which quota already includes the 20,000 H-1B visas reserved for individuals who have a master’s degree or higher from a U.S. university –, USCIS used a computer-generated random selection process, or lottery, to select those 85,000 petitions that will be subject of its adjudication.

Employers whose petition was picked in the lottery will be sent a receipt notice with a unique case number. The unselected petitions are automatically rejected and will be returned with their filing fee to the respective petitioner, unless the petition is found to be a duplicative filing (multiple petitions were filed by the same employer for the same employee). In the latter case USCIS will not refund any filing fees along with the rejection.

Petitioners should prepare to wait patiently; based on USCIS’ performance in prior years they could be informed about the final determination of whether their petition was selected for adjudication under the quota as late as June 2016. In the meantime, petitioning employers may would like to formulate a plan in the event their employee’s case was not among those randomly picked in the lottery. The sought-after foreign worker might be eligible for an alternate visa such as TN (for certain Canadian and Mexican professionals); L-1 (for intra-company transferees); E-2 (for certain employees of treaty investors); E-3 (for certain specialty occupation professionals from Australia); O-1 (for persons with extraordinary ability in sciences, arts, education, business, or athletics and motion picture or TV production); etc. For employers who were not favored by luck in the H-1B lottery it is highly advisable to seek the legal advice of an experienced immigration attorney to assess the eligibility of the specific employee for another visa classification that permits acceptance of employment in the United States.