U.S.C.I.S. gave interesting insights on its procedures during H-1B lottery season in its 5/13/15 teleconference agenda meeting of the American Immigration Lawyers Association (AILA) and its Service Center Operations (SCOPS) team. It said that of the 233,000 submissions, 50,000 were Masters (U. S. Masters cap cases) and that premium processing requests were approximately the same as last year. It also gave a good idea as to how it handles the many petitions it received – that once cases are submitted, petitions are not screened upon initial receipt pre-lottery other than which category the petition is requesting; once the lottery is conducted, the petition is reviewed to determine whether it was properly filed using the same rejection criteria for all petitions including fees, signature, incomplete form and failure to include a signed, certified LCA. SCOPS also stated that at any time during adjudication, a check for duplicate filings can be conducted (a duplicate filing will invalidate all filings). The breakdown of numbers means that individuals with U. S. Masters or higher degrees had good chances of being selected in the lottery given that 20,000 numbers were specifically allotted for their class, and that they enjoyed the privilege of being considered again with all the other H-1B petitions in a second electronic drawing if not selected for the U. S. Masters drawing. SCOPS’s explanation that , prior to the lottery drawing, U.S.C.I.S. would only examine the petition to see what category was being requested and only afterwards would review the petition to determine proper filing using its usual rejection criteria raises the question of what U.S.C.I.S. does with all of the lottery numbers that it already assigned to those rejected cases. There appears to be a much larger universe of assigned cap numbers than would be present if the agency used its usual rejection criteria before allotting the numbers. The agency should be held accountable for and publish all of the numbers that it assigned and in which the cases were rejected, denied, withdrawn or not approved for other reasons. By law, these numbers are supposed to be reassigned, but there is no common knowledge of whether U.S.C.I.S. does a good job of rehabilitating these numbers or not. The agency seems to say that these comprise only a small amount of numbers, but it has been known to reject and deny over 20% of petitions in certain years. A recapturing of those numbers if not mostly reassigned could be highly significant in allowing more proper use of the H-1B cap numbers every year.

Reprinted with permission.

About The Author

Alan Lee, Esq. The author is an exclusive practitioner of immigration law based in New York City with an AV preeminent rating in the Martindale-Hubbell Law Directory for 20+ years, registered in the Bar Register of Preeminent Lawyers, on the New York Super Lawyers list (2011-12, 2013-14, 2014-2015), and recognized as a New York Area Top Rated Lawyer. He has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Epoch Times, Pakistan Calling, Muhasba and OCS; testified as an expert on immigration in civil court proceedings; and is a regular contributor to Martindale-Hubbell's Ask-a-Lawyer program. 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; his 2004 case in the Second Circuit Court of Appeals, Firstland International v. INS, successfully challenged Legacy INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof, although its central holding that the government had to notify approved immigrant petition holders of the revocation prior to the their departure to the U. S. for the petition to be able to be revoked was short-lived as it was specifically targeted in the Intelligence Reform Act of 2004 (which in response changed the language of the revocation statute itself). Yet Firstland lives on as precedent that the government must comply with nondiscretionary duties established in law, and such failure is reviewable in federal courts. His 2015 case, Matter of Leacheng International, Inc., with the Administrative Appeals Office of USCIS (AAO) set nation-wide standards on the definition of "doing business" for multinational executives and managers to gain immigration benefits.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.