“This is not a competition”: Regarding H-1B petitions

For the past several years, I was a leader of a church youth group that did short-term summer  missions work in the Rio Grande Valley area of south Texas. On several of those trips, we needed to rent multiple cars, usually minivans, to transport the team members. During such trips, I would say to the other drivers, as we going from one place to another, “This is not a competition.” In other words, I was reminding them not to jeopardize safety by trying to be the first one to arrive at our destination. Of course, I was usually the first one anyway.

I mention this story because of conversations I have had with a number of people who mention the “competitive” nature of gaining H-1B status. For that reason, I would like to clarify the adjudication process for those who might be unfamiliar with it.

Filing a petition for H-1B status is different from applying to a university. There is no committee that sits at a table and evaluates a pool of H-1B petitions against each other. That is, your own petition does not get judged by how “qualified” you are compared to another person’s petition. Furthermore, they do not “rank” the petitions, then select only the “best” 65,000 of them. Rather, a USCIS adjudicator looks at YOUR petition, and the evidence that you, your employer and your attorney have prepared,  then decides—based on immigration regulations and the statute—whether you qualify for H-1B status.

The only “competition” involved with an H-1B petition involves those petitions that are subject to the cap. The competition involves filing your petition before the cap fills up. Actually, though, according to USCIS procedures in the past, petitions could be filed any time during the first five days of April. Then, if the cap is reached during those five days, USCIS would conduct a lottery, as they did this past April. If your petition was filed before the cap filled up in a non-lottery year, or if your petition “won” in any H-1B lottery, then whether you are approved or denied depends only on YOUR petition and supporting evidence, not on how well you compare with another.

So, as with my summer missions trip transportation, so too with H-1B petitions: this is not a competition.

You are welcome to contact me at 610-296-3947 or csun@calvinsun.com. This material does not constitute legal advice.