Understanding the fiscal year 2014 H-1B lottery

If you are reading this post, you probably are an employer who has filed an H-1B petition on behalf of someone who you hope will start working for you on October 1, 2013 (that is, at the beginning of the federal fiscal year 2014). Or, you are the person for whom the employer filed the petition, that is, you are the beneficiary. As you no doubt know by now, the United States Citizenship and Immigration Services (USCIS) will be conducting a lottery to determine which petitions they will review.  They are doing so because they received more petitions than what they are allowed to approve (and currently that “cap” number is 65,000).

If you are in this situation, I first would like to say that I am sorry about this situation. You are most likely unhappy and upset by the uncertainty of the situation, and I can understand why. I am as unhappy about this matter as you are.

Right now, on Monday, April 8, 2013, at 1:04 pm, USCIS has issued no new information on either the number of H-1B petitions it has received, or when the lottery will occur. You might be wondering about your chances of being selected in the lottery, and if so, all I can say right now is that the fewer petitions received, the greater your chances and vice-versa.  The best news, as far as I am concerned, would be for the total petitions to be 65,001.

The most important (and upsetting) aspect of this lottery is that it encompasses ALL petitions filed during the first five days of April, regardless of which day the cap actually was exceeded. In other words, even if the cap already was exceeded on the first day, or on the second day, USCIS still accepted petitions until April 5.  This five day window arose from concerns of petitioners from previous years in connection with courier and weather delays that affected the filing of petitions.

Because of this situation of the five-day window (and I hope your attorney already explained to you to set your expectations), a situation could arise in which you were the first petition filed, on April 1, but still you might not be selected. Or, you could be (hypothetically, because we don't know the total yet) petition number 70,000, on April 5, but still you might be selected. In other words, your actual date of arrival does not matter, so long as you filed on or before April 5.

The lottery actually involves two steps. The first step is for those beneficiaries who have a master’s degree or higher from a U.S. university. As you may know, the first 20,000 petitions that involve such a beneficiary are exempt from the cap. In other words, in effect, a beneficiary who has such a degree has access to an additional 20,000 approvals. In this case, USCIS will select, out of such petitions this year, 20,000 that it will review. All other such non-selected petitions will then be transferred to the second drawing, that is, they will be included with other “regular” petition, such as for beneficiaries who have at most a bachelor degree, or who have a master’s degree but from outside the U.S.

If your petition is selected in the first (if applicable) or second drawing, then USCIS will review it, as normal, to see if you qualify for H-1B status. If your petition is not selected, USCIS will return the petition and filing fee checks.

I hope this explanation is helpful to you.

You are welcome to contact me at csun@calvinsun.com.