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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