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H-1B Filing and Lottery Rules: Things You Are Eager to Know on April 1, 2009 Jian Joe Zhou, Attorney at law (jzhou@hooyou.com) April 1, 2009 is the first day that USCIS begins accepting H-1B petitions for the fiscal year 2010, which starts October 1, 2009. H-1B petitioning employers, alien beneficiaries and their attorneys have been working arduously over the past few weeks to meet this filing window, which is ever more significant due to the shortage of annual H-1B quota numbers. Since many H-1B sponsoring employers and alien beneficiaries are eager to be up-to-date and knowledgeable on the H-1B process, here are some explanations to the mysteries of the H-1B filing rules and quota lottery system.
According to the current USCIS rule, if H-1B filings reach the quota during any of the first five business days of April (for this year, it is from April 1 to April 7), all cases received during these first five business days will be considered to have been filed at the same time and will enter a lottery system for quota selection. Therefore, even if the quota is reached on the first day, cases filed until April 7, 2009 will have the same chance as those filed on April 1 in the quota lottery system. This rule gives employers and alien beneficiaries the last minute opportunity to prepare and file cases even after April 1, provided their H-1B cases can be delivered to USCIS by April 7. USCIS will monitor the H-1B case filing status and will likely to announce just before or shortly after April 7 about the quota status. If the quota is not reached by April 7, USCIS will continue to accept H-1B filings until quota is reached. If this is the situation, cases filed between April 1 and April 7 are guaranteed quota spots.
There are a total of 65,000 regular H-1B quota spots. In addition, there are 20,000 quota spots reserved especially for beneficiaries with US advanced degrees. The USCIS will count the filings separately. If both the 65,000 regular quota and the 20,000 advanced US degree quota are used up during the first five business days, the USCIS will conduct a computerized lottery for US advanced degree cases for the 20,000 quota first. After the selection, those US advanced degree cases that are not selected in the first lottery will be entered in the regular quota lottery with non US advanced degree cases for a chance at the 65,000 regular quota. For this year, we estimate that non US advanced degree cases will likely reach the 65,000 regular quota during the first five business days, but US advanced degree cases may not reach 20,000. Last year, there were more than 130,000 cases filed during the first five business days for the 65,000 regular quota and more than 30,000 US advanced degree cases filed during that time. With the current slowdown of the economy, , we expect the total filings this year for first five business days to be significantly less, dropping some 20-40% from last year.
If quota is reached during the first five business days, the lottery process may take about a month. So, petitioners may expect to receive the result of the selection beginning early May through June. If a case is selected for the quota, a USCIS Receipt Notice will be issued and sent to the attorney of record. If a case is not selected for the quota, the entire H-1b package including the filing fee checks will be returned to the attorney of record. If the quota is not reached during the first five days, any cases filed during the first five business days are guaranteed to receive quota spot if properly filed. USCIS is likely to issue the Receipt Notice to the attorney around 3-4 weeks after receipt of the filing considering the high volume of filings during this time.
USCIS takes around 3 months to adjudicate a regularly processed case once it has been selected for the quota. For premium processing cases, the USCIS must review the cases within 15 days from the date the quota spot is assigned. Therefore, if the quota is reached during the first five business days, the lottery system and review processing altogether may take 3-4 months for regularly processed cases. For premium processing cases, it will take around 1-2 months. If quota is not reached during the first five business days, USCIS will have to make a decision or issue request for additional evidence notices for premium processing cases within 15 days from the date of receipt. So, premium cases delivered to USCIS on April 1 will receive USCIS decision by April 15.
As stated above, if your and your employer work diligently with an attorney, you can still file the case after April 1 even if the quota is reached during the first five business day window. Provided your case is delivered at the USCIS by April 7, you will be guaranteed the same chance at the quota lottery system as the case filed on April 1. Zhang & Associates, P.C. has a team of 10 attorneys and around 20 supporting professionals working in nationwide offices in New York City, Houston, Chicago, Los Angeles, and Austin and they have the capacity to assist employers and aliens for emergency last minute H-1B filings. The firm is still actively accepting new H-1B filing cases and will work with the clients to meet the quota deadline. ------ ------ (04/01/2009) For more immigration news, please click here |
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