(This is the second of a 4 part article based on a talk given by Alan Lee, Esq., at the Queens Borough Public Library in Flushing, Queens, on March 10, 2014. Today’s topics are the cap issue and the lottery. The remaining parts will discuss the filing process and strategies of filing, common misperceptions of premium processing benefits, the cap gap, and problems after the H-1B petition is approved and before October 1st.)

3. The Cap Issue and the Lottery

A The Numbers Available in 2014 and the Lottery

Now we move on to the cap issue. The first question is whether there will be an H-1B lottery this year, and the answer is that unless the economy crashes this month, we will have a lottery and the H-1B application season will close almost as soon as it opens. Assuming that there is a lottery, what are your chances of being picked? I can tell you that even though there is random selection by computer, most who apply will be picked. How many numbers are out there? We have a sense of the numbers although they are only approximates and depend upon the reasonableness of U.S.C.I.S. in adding further numbers. Under the current H-1B cap quotas, there are 4 sets of numbers. The first number is 65,000 for those with bachelor's or higher degrees or their equivalent with the exception of U.S. advanced degree holders. Second is 20,000 allotted first to those with masters or higher degrees earned in the U. S. Third, 6800 is the number subtracted from the total for H-1B1 petitions filed by those under the Singapore/Chile Free Trade Agreement. However, the actual number of those petitions filed is usually small, and so based on the past, one can assume that there will be at least 5500 added back into the mix for persons applying for cap H-1B’s. The last number is for those who are wait-listed, and that number is up to U.S.C.I.S., but the least amount of numbers should be 10,000. Wait-listed petitions substitute for those that are denied, withdrawn or otherwise found ineligible. We base the 10,000 number on statistics provided by U.S.C.I.S. in October 2012 showing that from FY 2009 to FY 2012, the number of H-1B cap cases denied, withdrawn, or otherwise found ineligible averaged 11%. We note, however, that the statistics are difficult to reconcile with earlier 2012 information in a National Foundation for American Policy brief analyzing government data that denial rates alone for all H-1Bs without regard to the other two categories were 29% in FY 2009, 21% FY 2010 and 17% FY 2011. For these years, the average denial rate was 22%. Obviously the statistics must be taken with a grain of salt since the U.S.C.I.S. official numbers do not contain FY 2013 and the National Foundation numbers only go up to FY 2011 – but they give us a sense of where the numbers could be or should be. The difference between the 2 figures is approximately 8000 cap numbers. But using the official numbers, the available numbers should be a little north of 94,000. I might note that this number is without regard to the hundreds of thousands of unused H-1B visa numbers over the years which if recaptured would probably do away with the need for H-1B lotteries for many years. The budget reconciliation bill (S 1932) in 2005 had a provision that was never adopted by the House which would have allowed the recapture of approximately 300,000 unused H-1B numbers dating back to FY 1991.

How many people will be applying? How many H-1B petitions can we expect to be submitted in April? Last year there were approximately 124,000. No one expects that there will be less this year. The economy is up, hiring is up, and the leavening factor of the extra $2000 filing fee since August 2010 (for companies employing 50 or more individuals in the country of whom 50% or more are in either H-1B or L-1 intracompany transferee status) bringing the total filing fee to $4325 in addition to attorneys fees and other expenses (usually over $6000) seems to so far have been absorbed by companies as just part of the cost of doing business.

But as I said previously, given the number of available H-1B cap numbers, the chances are much more in favor of a petition being receipted than rejected. The odds further favor those having U. S. Masters degrees as they are first put into the electronic spin barrel selecting 20,000 numbers and if not selected for the first spin, put into a second drawing encompassing all of the remaining numbers.

B What Filings Are Exempt From The Cap?

H-1B filings that are exempt from the cap are where the work is for an institution of higher education or an organization associated with an institute of higher education, a nonprofit organization related to or affiliated with an institution of higher education, or a nonprofit research organization or governmental research organization. In addition, work for a company or other organization on the campus of an institute of higher education may also be exempt if the work relates to the purpose of the institution – for example, the private physician group with its physicians working in the University teaching hospital as opposed to a company with managers and other staff opening a sportswear store on campus. If you're being sponsored by one of them, you don't have to worry about the cap. Other people who are exempt from the cap are people who already have H-1s and are extending or transferring to another organization, persons working for institutes of higher education or other cap exempt organizations who take concurrent employment with outside organizations that are cap subject, or those who have not used up all the time on former H-1B’s and have an organization ready to sponsor them. With this group, if they have already been outside the U. S. for one year, they would have the choice of either going for a new cap-subject H-1B or using the remainder of the 6 years when they file their H-1B petitions.

What can you do if you miss the cap? The choices are going back to school, changing status to another category, leaving the country, or staying here illegally. Most of the people that we know choose to go back to school and try again in the next year. Those keeping to their F-1 student status can take on another degree program, do continuing education courses, or pick up knowledge in other fields in lesser programs. People with have high credentials in their chosen field may be able to qualify for O-1 visa consideration as either extraordinary or outstanding. Others may qualify for L-1 intracompany transferee status at a later date as manager, executive, or person with specialized knowledge if the company that is interested in them sends them abroad for one year (a requirement) and then petitions for them to come back. An L-1 is not cap subject. So it's not the end of the world if you miss the cap.

This article © 2014 Alan Lee, Esq.

About The Author

Alan Lee, Esq

Alan Lee, Esq. is a 30+ year practitioner of immigration law based in New York City holding an AV preeminent rating in the Martindale-Hubbell Law Director, registered in the Bar Register of Preeminent Lawyers, on the New York Super Lawyers list (2011-12, 2013-14), and recognized as a New York Area Top Rated Lawyer in 2012. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasba and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Bush Administration in the Intelligence Reform Act of 2004.

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