April 3, 2007

USCIS Reaches FY 2008 H-1B Cap─What Now?

On April 3, 2007, the United States Citizenship and Immigration Service (USCIS) announced that it received enough H-1B petitions to meet the congressionally mandated H-1B cap for the fiscal year 2008. USCIS will now use a random selection process for all cap subject cases received on Monday, April 2, 2007 and Tuesday, April 3, 2007. The random selection process is a computer-generated selection process where all applications received on the 2nd and the 3rd will be selected at random. USCIS will reject and return all cases, along with the requisite filing fees, for all cap-subject H-1B petitions that are not randomly selected or any that are received on or after Wednesday, April 4, 2007.

Greenberg Traurig filed all of its clients’ H-1B petitions on April 2 and April 3, 2007 and have verified delivery. However, the fact that USCIS has received a petition, and issued a receipt number, does not mean that the petition has successfully captured a quota number. USCIS has provided unofficial estimates that it will take four to eight weeks to conclude the lottery process and return the petitions that were not selected for fiscal year 08. There has not been any information provided as to how cases filed under premium processing will be treated and whether the filing fees will be returned as the case cannot be adjudicated until after the random selection process is complete and, therefore, no decision will be rendered in the mandated time frame. For those cases that were filed through the premium processing service we await information on whether the USCIS will be able to meet its 15 day processing time or whether the $1,000.00 fee will ultimately be returned. At this point, the USCIS has begun to fee in cases but there are discussions that they may run the lottery through an alternative mechanism rather than feeling in all cases for receipt.

In addition to the general quota of 65,000 which has certainly been met, USCIS is unsure if the additional advanced degree quota of 20,000 has been reached. In the event that more than the allotted 20,000 new cases for advanced degree holders are received, USCIS will hold a random selection process for these cases. Any advanced degree cases that have not been selected for the advanced degree quota will become part of the random selection process of the regular H-1B cap petitions pursuant to Section 214(g)(5)(C) of the Immigration and Nationality Act. Logistically this appears to be very difficult for the USCIS as the 20,000 advanced degree cases will need to be identified prior to the random generated lottery.