Finding an exemption from the H-1B cap

If you are seeking H-1B status in 2015, most likely you will need to be concerned about the H-1B cap. By law, the number of H-1B approvals is limited each fiscal year to 65,000. Of this number, about 6,000 are reserved for nationals of Singapore and Chile.

The cap poses two issues. First, if the number of petitions exceeds the cap, then the immigration service will conduct a random lottery. See http://yi2min2.blogspot.com/2014/12/dealing-with-h-1b-cap.html  for details. Therefore, if your employer has filed a petition, and this petition is part of the lottery, you risk not being selected. Second, regardless of whether or not a lottery will be held, you might have timing issues in maintaining status until October 1, 2015, the time when new approvals become available. For example, your OPT grace period might end prior to April 1, 2015, leaving you a gap between that time and October 1. In such a case, you would need to find another lawful status so that you could remain in the US, or else have to leave the US. See  http://yi2min2.blogspot.com/2012/12/your-opt-ending-date-and-its-effect-on.html   for details on how an OPT ending date affects an H-1B cap-subject petition.

On the other hand, some petitions for H-1B status will be exempt from the cap.  If your petition falls into one of the categories below, and is otherwise approvable, you would not need to worry about any lottery or about any arbitrary filing or beginning-of-work dates.

·         The petitioner (that is, would-be employer) is an institution of higher education, or a nonprofit entity having a proper affiliation with such an institution

For example, a faculty person at a university probably would be H-1B eligible and also cap-exempt. So would, possibly, a researcher at a hospital at which medical school students from a university would study or do practical work

·         The petitioner is either a federal or a nonprofit research organization

An example of such an organization is the National Institutes of Health (NIH).

·         The beneficiary (that is, the would-be employee) previously held cap-subject H-1B status in the past

The Bible says that “since Christ was raised from the dead, he cannot die again…” Romans 6:9. That is, because Christ died once, he therefore cannot die again.

In the same way, if a person previously was counted against the cap recently enough, that person is not required to be counted again. For example, suppose a person graduates with an MBA, then receives cap-subject H-1B status for the first time to work as an accountant. After a year, the person returns for a second master’s degree, changes back to F-1 status, and this degree requires a year. When this person again seeks H-1B status, this person need not be concerned with the cap, because of the previous cap-subject H-1B time.

Please note that simple nonprofit status of a petitioner, by itself, is INSUFFICIENT to qualify that petitioner as cap-exempt. In the same way, a non-government organization (NGO) is not automatically exempt from the cap.

The immigration statute provides another exemption, but only for the first 20,000 eligible petitions. This exemption is for people who hold a master’s degree or higher from a U.S. institution of higher education. This U.S. master’s cap exemption is already full, however, so that even if you held such a degree, the earliest you could work lawfully in cap-subject status, if at all, would be October 1, 2015.

If you are claiming an exemption based on the type of petitioner, be sure to pay attention to the address for filing. These petitions traditionally have gone to the California Service Center. In addition, please be aware that Federal Express, if not other courier services, will deliver only to a “real” street address, not to a post office box address.

I hope this information is helpful to you.

The above blog post does not constitute legal advice and does not form an attorney-client relationship.
Calvin Sun, Attorney at Law
610-296-3947, cell 215-983-3723
csun@calvinsun.com
We Chat: calvin_t_sun

Thin envelope "good," thin envelope "bad": understanding the H-1B lottery

If you are an international student, and you are seeking to work lawfully in the US following your graduation or your optional practical training, you might want to start planning for H-1B, and talking to your boss about it, if not already.

In particular, if you and your employer both are subject to the H-1B cap (and this blog post assumes so), then you must be aware of particular dates and of the possibility of a lottery. In this blog post, I will explain why certain dates are important for cap-subject H-1B petitions, and how to deal with both the cap itself as well as any possible lottery.

The two most important dates with respect to a cap-subject petition are April 1and October 1. Each year, by law, the government makes available 65,000 H-1B approvals (though the actual available number is less, due to provisions for people from Singapore and Chile, under the NAFTA treaty). If, during the current period, the cap already is full, then a person cannot begin working until October 1. This date is the start of a new federal fiscal year and is also the date that new H-1B approvals are available.

Furthermore, the H-1B regulations allow petitions to be filed at most six months prior to a given requested starting date. Six months prior to October 1 is April 1. Therefore, if you wish to file a petition that requests an October 1 starting date, you must do so only ON or AFTER April 1. IF YOU FILE PRIOR TO APRIL 1, THAT PETITION WILL BE DENIED, because the cap for the current fiscal year already is full.

Starting on April 1,  the immigration service will begin receiving and counting the petitions it receives. The H-1B regulations state that if the cap is reached during any of the first five business days of April, the service must make ALL petitions filed during those first five days available for a random lottery.  In other words, even if 100,000 petitions arrive the first day, the service has to continue to accept petitions for the next four days, then conduct the lottery. Yes, you are correct: your petition could be the first one that arrives April 1, but even still it might not be selected in the lottery. Conversely, your petition could be the last one that arrives on April 5, and that petition could be number 150,000, but even so it possibly still could be selected in the lottery. Yes, this arrangement s*&@ks  and is unfair to you if your attorney was diligent and filed right on April 1. But please understand, I did not make these regulations.

The lottery occurs in two stages. First, the service looks only at those petitions where the beneficiary (that is, the would-be H-1B employee) has at least a master’s degree from a United States institution of higher education, because by law, the first 20,000 such petitions are exempt from the cap. The service then randomly chooses, from these petitions, 20,000 of them. Any unselected petitions then get placed with all other filed H-1B petitions—that is, those where the beneficiary lacks a master’s degree or higher from a U.S. institution of higher education. Note: you would be INELIGIBLE for the U.S. master’s cap exemption if your master’s or higher degree(s), if any, came from only (a) non-U.S. institution(s) of higher education. This remaining pool of petitions is the source for the second stage of the lottery.

In the second stage, the service chooses, from this remaining pool, up to 65,000 petitions for review. These selected petitions, plus the 20,000 selected from the first stage, are the only ones that possibly can be approved for cap-subject H-1B status for the period beginning October 1, 2015. Please note: simply being selected in the lottery is not enough for H-1B status. Rather, your petition still be reviewed to ensure it meets H-1B legal standards. Furthermore, neither the strength of the petition, nor the election of premium processing, has anything to do with its chances of being selected in a lottery.

Now that you have this understanding, what are key points to remember?

Timely filing is crucial

The most important aspect of filing a cap-subject petition is to file as soon as possible on or after April 1,  BUT NOT BEFORE. If you cannot file right on April 1, then the latest you should be filing is the fifth business day of April. If you file after this date, your chances of acceptance under the cap decrease dramatically, or might even be zero. If you miss this window, then your only chance for consideration is that no lottery is held. Even then, your petition must arrive in time, before the cap fills up. The best arrangement, therefore, is to file no earlier than April 1 and no later than the fifth business day of April.

H-1B cap-subject filing involves WINDOWS, NOT “deadlines”

When I talk about “windows,” I am not referring to any computer product. Rather, I am referring to the idea that your filing can occur neither too early (that is prior to April 1) nor too late (that is, later than April 5).  For this reason, H-1B filing involves a window, not a deadline. The latter implies that filing can occur any time before a particular date. However, such is not the case with cap-subject H-1B. If you file too soon, that is, prior to April 1 2015, you will be DENIED.

Qualifying for the U.S. master’s cap exemption increases your chances

If you qualify for this exemption, your chances of acceptance increase, because, effectively, you have a chance at an “additional” 20,000 approvals.

Some H-1B beneficiaries who might otherwise qualify for this exemption might be discouraged by the timing of their graduation. They could think that because the H-1B window is April 1 to April 5, and because they might not get their degree until after that time, perhaps May or June, that they are ineligible. In some cases, though, they could be WRONG. The immigrations statute requires only that the degree be EARNED, not that the degree necessarily be AWARDED. If you are such a person, then you might want to consult with your advisor or other relevant academic official. If that person legitimately considers you to have completed all requirements of your degree, such that the only other requirement is your graduation, then you could be considered to have met the exemption. In this case, you should get a letter to this effect, on letterhead, and send to your attorney.

Prior lottery results have no effect on current lottery chances

A number of people have asked me whether their non-selection in the previous lottery gives them an advantage in the upcoming lottery. Unfortunately, no such advantage exists. Every petition that is filed theoretically has an equal chance, regardless of what happened to that beneficiary in a previous lottery.

The nature of your job has no effect on your lottery chances
Your chances of being selected in the lottery has nothing to do with the nature or location of your job. That is, whether that job is in Philadelphia or New York is irrelevant. Similarly unimportant is whether your job involves a STEM area or not.
Getting through the lottery is necessary, but not sufficient

If you find that you were selected in the lottery, you should be happy. But please remember, the immigration service STILL has to review your petition to see if you are eligible for H-1B status.

You may be wondering how you will know whether or not you were selected in the lottery. If you were selected, your employer or attorney will receive, relatively quickly (that is, within two to three weeks) a thin envelope with a form I-797 receipt, showing the filing fees your employer paid (and remember, your employer, not you, should be paying these fees).

However, if you were not selected, then several months later, your employer or attorney will receive a THICK envelope, and the contents will be your petition filing. This envelope will contain the uncashed filing fee checks. It also will contain a blue sheet that explains that in spite of being filed in time, your petition was not selected in the lottery.

Key point: thin envelope is GOOD, thick envelope is BAD.

Now let’s talk about some WRONG ways to improve your chances in a lottery.

DO NOT “stuff the lottery box”

“Stuffing the [ballot] box” is an American idiom that refers to the practice of voting, illegally, multiple times for a given candidate. In the old days, and in certain places in the U.S. still, elections are conducted via paper ballot, where a voter marks the ballot then places it in a ballot box. A dishonest person who wanted a particular candidate to win therefore could try to “stuff the box” by placing extra, unauthorized ballots in that box, with that candidate selected.

Some employers might have this same idea with respect to an H-1B lottery. That is, they believe they can increase the chances of petition approval simply by filing multiple cap-subject petitions for the same person.

NOT COOL!!!

If they do, the immigration service will deny every such petition from that employer, leaving that beneficiary with NO chance for H-1B with that employer. In other words, an employer may file, for a given fiscal year, a maximum of ONE cap-subject petition for a given beneficiary.
Be skeptical of anyone who says that they can otherwise increase your lottery chances

If anyone says that for a fee, he or she can increase your chances in the lottery, apart from what I have described above, listen if you wish, but be skeptical. Or else, simply run as fast as you can from that person.  

The information in this blog post does not constitute legal advice and does not form an attorney-client relationship.
Calvin Sun, Attorney at Law
csun@calvinsun.com
cell 215-983-3723, office 610-296-3947
We chat: calvin_t_sun
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