Jian Joe Zhou (jzhou@hooyou.com)

The rate of selection in the H-1B fiscal quota is so low that people call it equivalent to a lottery.  During the initial filing period (first five business days of April) of the April 2015 filing season, USCIS received around 230,000 filings, all of which were competing for a spot in the 85,000 fiscal quota.  Among the 85,000 spots, 20,000 spots were reserved for cases in which the beneficiary received an advanced degree (known as the US Master category, but the category includes all advanced degrees) in the United States.  USCIS reviews a case for substance and issues a determination regarding the petition only if the case is selected for the fiscal quota.  Therefore, selectionin the fiscal quota is only the first, but critical, step towards a successful H-1B approval.

If USCIS selects and approves a case, the earliest effective date for the H-1B approval period will be October 1st of that year.   USCIS allows employers to file quota-subject cases 6 months ahead of the effective date.  Therefore, April 1stis the earliest time that an employer can file for the next annual quota, if the current year’s H-1B quota has been used up.

For fiscal year 2017’sH-1B quota (Yes, it is 2017 fiscal quota), USCIS will start to accept filings on April 1, 2016.  Based on our experience, we expect USCIS to reach the quotawithin the first five business days of April 2016. 

According to H-1B regulations, if USCIS reaches the H-1B quota by the end of the fifth day of April, USCIS must consider all cases filed within the first five business days of April asthough they were filed at the same time.  USCIS uses its projection method to estimate the number of casesit will receive,and if it is likely to reach the quota by the end of the fifth business day of April, USCISwill not process any case received within the first five days. Instead, atthe end of the fifth business day of April, USCIS will check the number of case received, and if USCIS reaches the quota, they will then put all cases in a computerized lottery system.

Prior to putting all cases in the lottery system, USCIS separates cases in one of two categories: “US Master Cap” category,or“All Others” category.  USCIS will first run a lottery system for cases filed under the US Master Cap.  The lottery system will randomly select 20,000 cases for the reserved quota.  Once the lottery selects the 20,000 cases, all remaining “US Master Cap” cases will be put with the “All Others” category and they will compete for the regular 65,000 H-1B quota.  Those cases, which are not selected for quota, will be returned to the filer (attorney or the employer) with non-cashed filing fee checks.  Those cases, which are selected for the quote, will go through a substantive review process before USCIS makes a decision of approval, denial or request for additional evidence.

How soon will I know the quota lottery result?

Answer: According to past experience, USCIS takes around 2-3 weeks to complete the H-1B quota lottery process.

When will I know whether I am selected?

Answer: Due to the volume of the filings, it takes USCIS several weeks to issue receipt notices for those who are selected for the quota.  For those who are not selected for the quota, USCIS will issue the rejection notices and return the whole package.  The rejection notices sometimes take up to 3 months.

Does Premium Processing Increase the chance of selection?

Answer: No, premium processing will NOT increase the chance of selection.  All cases filed will have the same chance in the lottery system per its class of filing (Master Cap or All Other).

When will USCIS start the Premium Processing?

Answer: USCIS will start counting the 15-day premium processing period onan announced date shortly after when the selection is completed.  From past experience, the date usually falls in late April.  So, around the middle of May, a case filed under premium processing should for sure know whether it is selected, as USCIS is mandated to make a decision (approval, denial or RFE) by then.   In the past, USCIS has sent out courtesy email receipt notices for those cases that are selected for quota and are filed under premium processing.

Will the case filing fees be returned if case is not selected for quota?

Answer: Yes, for cases returned because they were not selected for quota, the original filing fee checks will be returned with the case packet.

Can one employer file two H-1B petitions for one employee?

Answer: No.  According to USCIS’ rule, any employer (identified by FEIN number) who files two or more petitions for the same employee will lead to the rejection or denial of all petitions for the same employee.

Can one foreigner worker have multiple H-1B petitions sponsored by different companies?

Answer: Yes.  One foreigner worker can be the beneficiary of multiple H-1B petitions, so long as different companies (distinguished by FEIN number) file the petitions.  Each company can only file one petition for the beneficiary.

I have not finished my US master degree but I have a foreign bachelor degree.  Can a US company file H-1B now by using my foreign degree?

Answer: Yes.  USCIS generally accepts a foreign four-year bachelor degree as an equivalent to a US bachelor degree. Therefore, you may qualify for an H-1B petition so long as the degree is in the major field that is proper for the H-1B specialty position.  A degree evaluation is required and your H-1B attorney will help you arrange such evaluation if you have not received one.

Author:

Attorney Jian Joe Zhou has more than 15 years of experience in the area of employment based immigration and non-immigrant visa petitions.  He has assisted more than 1000 cases in H-1B, PERM green card, EB-5, NIW, EB-1, I-485, L-1, TN, and related areas.  He has a wealth of experience in dealing complicated H-1B filings and response for RFE (request for additional evidences). He can be reached by email at jzhou@hooyou.com

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Founded in 1996, Zhang & Associates, P.C. offers legal services to clients nationwide in all aspects of U.S immigration law. We have successfully handled thousands of immigration cases.

At Zhang & Associates, P.C., our attorneys and supporting professionals are committed to providing high-quality immigration and non-immigration visa services. We specialize in NIW, EB-1, PERM, and I-485 cases. In the past nineteen years, we have successfully helped thousands of clients get green cards. If you plan to apply for a green card, please send your CV to Attorney Jerry Zhang (info@hooyou.com) for a free evaluation.

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(01/19/2016)