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H-1B Season: It is Déjà Vu all over again!
March 4, 2014

As the April 1st filing deadline approaches, we are back in familiar territory, faced with all the perennial questions once again:  How many petitions will get filed this year? Will there be a lottery? Any advantage in filing on the first day? Any advantage in filing with Premium Processing? When should the process be initiated?  And, the perennial question from incurable optimists – Is there a chance for the quota cap to be increased this year?

Let me try my best to answer these questions.

How many petitions will get filed this year?

The short answer is: Many more than last year, going by the trends.  Our office has been getting more inquiries than last year, both from our existing clients as well as potential, new clients.  And the inquiries started coming in much earlier.  Last year, USCIS received 124000+ petitions in the first five days, against the quota cap of 85,000 (65,000 regular plus 20,000 US advanced degree).  This year, this number is going to be surpassed.  The reasons? The business model that uses the H1B program appears to have become more promising, and, despite all the likely pitfalls, the employers seem increasingly willing to assume the risks.  Also, there are thousands of EAD-holders whose petitions were not picked in the lottery last year and are eager to have petitions filed on their behalf this year.

Will there be a lottery?

Yes!  As indicated above, the USICS is certain to receive more petitions than last year.  It is mandatory that they take petitions for the first five days.  And these petitions, since they will exceed the available visa numbers, will go into a lottery.

Any advantage in filing on the first day?

There is no advantage in filing on the first day.  No matter how many petitions the USCIS receives the first day, it is mandatory for them to accept petitions for the first five days of April and if the intake exceeds the quota. USCIS must include all the received petitions in the lottery.  So a petition filed on the fifth day has as much chance of getting picked in the lottery as a petition filed on the first day.  But we strongly urge our clients to file the petitions at the earliest possible because waiting for the last day can become fatal – there can be any number of reasons for the petition to get delayed in transit and not make it to the USCIS system by the fifth day.

Will filing with Premium Processing help beat the odds if there is a lottery?

No. Premium Processing only guarantees a “decision” from the USCIS within 15 business days.  If that decision is a Request for Evidence (RFE), then the clock sets back to Day One after the USCIS receives the response to such RFE, and the USCIS has another 15 days to give a decision.  However, when the petition is approved, the start date of employment will still be October 1.  The only advantage with Premium Processing is that the employer and employee do not have to go through a prolonged period of suspenseful anticipation and intrigue about the outcome of the petition.  For non-Premium cases, sometimes the wait lasts well beyond the requested employment start date of October 1.

When should the process be initiated?

In view of the factors explained above, the attorneys handling H1B petitions are expected to be busier this year than last year.  So it is extremely important to be prepared well in advance. Attorneys will need enough time to gather all the relevant information; prepare the petitions accurately and get them signed by the employer; make sure all evidentiary documents and fee checks are attached; and send the petitions out in time so as to reach USCIS positively before the quota gets capped, i.e., within the first five business days of April. USCIS could return the petition as incomplete for any number of reasons, such as, petitioner omitting to sign at one or more places, attaching the wrong amount of filing fees, post-dated checks, or even for the filing fee check amounts being different in numbers and words! If a petition is returned as incomplete, a precious year will be lost!  To those who have not started the process nor contacted an attorney yet, we strongly advise to do so latest by the first week of March.

And, the perennial question from incurable optimists – Is there a chance for the quota cap to be increased this year?

There are no indications whatsoever to this effect so far.  In our opinion, it is extremely unlikely that the quota cap will be increased this year.

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