Most employers know that they can submit H-1B petitions on behalf of foreign born professionals six months before October 1st , the first day of the federal fiscal year. First day of filing, April 1st is always very stressful. So following all of the instructions, day before April 1st, we law firm submit numerous of H-1B petitions for foreign born professionals, knowing that these would reach the government by, April 1st, the government’s official processing start date. If an H-1B petition is approved, foreign professionals can begin working on October 1.
What no one could have guessed was that in the past 2 years the government would receive over 140,000 such petitions, way too many for them all to be approved. In an event that sent shock waves through the immigration community, twice the available quota of H-1B visas was received by the Immigration Service on the very first day (or first 5 days under last year changes) it accepted petitions.
How does the government decide which employers get their workers on October 1st? Guess what, the answer is by a lottery. The first 65,000 foreign professionals to be randomly chosen get to work in the U.S. The rest get their petitions back in the mail and checks returned as well.
Of course, if these professionals are still interested in returning to the U.S., employers can petition for them again in April of 2010. If they don’t make the cut in 2009, they can try again in 2010, and so on year after year.
So how can one beat the lottery for H1B visas?
There are a few things that prospective H-1B employers and H-1B employees can do to improve the likelihood that the H-1B will be accepted by the USCIS. First, be sure that all of the appropriate documentation is contained in the H-1B petition. Second, be sure that the H-1B is submitted to the USCIS in a timely manner. Third, be sure that the H-1B is sent to the proper USCIS Service Center for adjudication.
Most importantly, H-1B petitioners should consider the possibility of utilizing filing multiple H-1B petitions. Be advised that the USCIS issued guidance concerning multiple H-1Bs. Filing a master’s H-1B and bachelor’s H-1B is not considered a multiple H-1B filing. Many organizations have layers and layers of subsidiaries and affiliates (different organizations with different Employer Identification Numbers) and there appears to be nothing yet in the regulations to preclude the use of those organizations as vehicles for additional H-1Bs. With each H-1B submitted, there is a statistically higher chance of one of the H-1Bs being able to “win” the lottery.
What is your H-1B back-up plan? First consider trying to obtain an H-1B with a cap-exempt organization. Academic institutions of higher education can make petitions for the H-1B with no regard to the cap. Also, many may qualify for alternative visas to the H-1B. For example, in 1991, the law carved the O, P, J, Q and R visa categories out of the H-1B nonimmigrant visa classification. Consider all alternatives possible!!