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What to Do After Your Company Has Filed all of its H-1B Petitions now That the April 1st Deadline Has Passed

April 3, 2018

The frenzy of H-1B preparation and filing has finally ended. H-1B petitions will be reviewed by officers at one of the two United States Citizenship and Immigration Services (USCIS) Service Centers accepting petitions. USCIS has announced that it has received in excess of the maximum 85,000 petitions by the fifth business day of April. What is next?

After receiving your petition, USCIS will first label it with a unique identifier, which it will use for its random selection algorithm. Once labeled, the group of H-1B petitions will be divided into two overall sets - one as master's degree quota and one as regular (bachelor's degree) quota. If more than 20,000 petitions are received for the master's degree quota, USCIS will run a computer-generated selection process (the H-1B lottery) across the pool of master's degree petitions to select the 20,000 petitions that will meet the master's cap for fiscal year 2019.

These over-the-quota master's degree petitions get a second chance for potential selection. They are combined with the balance of the petitions received for the regular (bachelor's degree) H-1B petition quota. If the total number of petitions in the pool for bachelor's degrees is more than 65,000, which is the cap limit, a computer-generated random selection process identifies the petitions that will qualify for the regular cap limit.

Following this process for meeting the quotas, USCIS will forward a list of all selected petitions to the service centers. The center will proceed with the next level of H-1B visa processing for adjudication and review. If petitions are not selected through this random process, they will be returned to the U.S. petitioners or attorneys directly, along with the uncashed fees. If employers submit duplicate filings for the same employee, no fee will be returned. USCIS will thereafter notify all selected petition holders by receipt of their case number for further processing. A receipt number will be issued by USCIS with an EAC or WAC case number, which can be tracked at www.uscis.gov/tools by the employing petitioner or foreign national beneficiary.

USCIS will continue to suspend premium (fast track) processing on all H-1B cap cases until September 10, 2018. Last year, USCIS resumed premium processing very late in the process and long after the majority of H-1B petitions were reviewed and adjudicated. It is a mystery why USCIS would deprive itself of the significant fast-track filing fee as it self-funds and has no separate budget line from Congress. Attorney General Jeff Sessions has long held the position that the H-1B program should be terminated in its entirety, and this may be the forerunner to that next step. USCIS has stated that for next year, it may institute a pre-registration process whereby the employers paying highest-level wages to the most qualified foreign national applicants may be eligible to file for H-1B petitions. Stay tuned!

Special H-1B cap-gap provisions, which address needs of students who find themselves in OPT (optional practical training) status, allow such students to remain in the United States and continue working for the employer until their petitions are processed. Detailed cap-gap regulations can be found here. It is best to consult with immigration counsel if special situations regarding travel might arise while an H-1B petition is pending with USCIS.

Finally, USCIS will send a notification regarding the adjudication of the H-1B petition. Precise timing of notifications is not certain, but last year's notifications were distributed from May to October 2017.

Bottom line - it is best to have a strong case, strong drafting and good qualifications to make the H-1B petition a success, but the selection and lottery process is largely out of our hands.

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