Comment: H1B Quota Prediction

USCIS announced yesterday that "Based on feedback from a number of stakeholders, USCIS anticipates that it may receive more petitions than the H-1B cap between April 1, 2013 and April 5, 2013." USCIS further announced that: "USCIS anticipates that it may receive more than 65,000 cap-subject H-1B petitions and more than 20,000 petitions filed on behalf of individuals with a U.S. master's degree or higher between April 1, 2013, and April 5, 2013. This could be the first time since April 2008 that the H-1B cap will require a lottery."

It is surely a good idea for petitioners (and attorneys who represent them) to file early with USCIS to ensure that their application does not miss the FY 2014 quota entirely. However, that is not the issue we would like to discuss, instead, we would like to consider the actual demand for H1Bs, and the realistic chances of the quota being reached early enough to trigger a lottery.

For the years leading into the recession (in other words, in the years when the H1B lottery was a reality or a possibility), the largest users were a relative handful of large IT companies (about two dozen or so) - these users accounted for between a quarter and a third of the applications. Unless the IT sector usage is now seriously lagging behind the rest of the economy, one would expect that filings by large IT companies would once again dominate the current H1B season, as before. In other words, the only stakeholders who can sway the H1B cap seriously would be the these small number of IT companies - "feedback from a number of stakeholders" is not necessary to make an educated guess as to whether a lottery is likely to get triggered. This is because the previous year, the quota was reached on June 11th. Surely the general economy has not recovered to a point that this date would be preponed all the way to the first week of April, thus triggering the lottery. The issue therefore resolves to whether these small number of IT companies have recovered better than the rest of the economy and whether they expect to file so many new H1B petitions as to trigger the lottery. Immigration Daily has learned that no such large filings are planned. It is our belief that the H1B filings will therefore not be so overwhelming as to trigger the lottery.

So, what to make of these USCIS announcements? Perhaps the agency is acting in an abundance of caution, to ensure that those employers who wish to be part of the FY 2014 quota get put on notice that they need to get their applications together. If that is the case, we commend the agency for raising the level of awareness of the quota issue among the employer community.

Unfortunately, there is another explanation for the USCIS announcements. This explanation is political, and we hope that USCIS is not acting out of political motive here. As we discussed yesterday, currently, AFL-CIO and US Chamber of Commerce are at loggerheads over CIR to the extent that for all practical purposes, they are not talking to each other. Sen. Schumer (D-NY), who heads the Senate immigration sub-committee, has head several tense exchanges with the head of the AFL-CIO over the matter. Naturally, AFL-CIO fears that Sen. Schumer will not side with them, and AFL-CIO may well have gone over to the White House to cry on its shoulder. Perhaps this prompted someone at the White House to lean on USCIS to issue these H1B lottery announcements. This would be a way for the White House to signal to the US Chamber of Commerce that they too have a dog in the CIR fight, and that H1B quota revision is part of all serious CIR proposals, and to thereby perhaps move the CIR discussion to the left, in favor of the AFL-CIO. We believe such political discussions are best conducted in Congress, and hope that USCIS was not maneuvered by the White House into issuing these lottery announcements.

As we enter the most eventful time of the year for employment-based immigration law firms, the H1B season, Immigration Daily will keep you on top of the news, stay tuned!

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