On March 15, 2013, the U.S. Citizenship and Immigration Services (USCIS) announced, based on feedback received from "stakeholders," that it anticipates receiving "more petitions than the H-1B cap between April 1, 2013, and April 5, 2013," and that it may receive "more than 65,000 cap-subject H-1B petitions and more than 20,000 petitions filed on behalf of individuals with a U.S. master's degree or higher between April 1, 2013, and April 5, 2013." USCIS also stated that "[t]his could be the first time since April 2008 that the H-1B cap will require a lottery."
What does USCIS mean by the H-1B cap requiring a lottery? It means, nothing less, that USCIS will conduct a random lottery for all H-1B cap-subject petitions, which have been accepted for processing, if the number of petitions received is significantly higher than there are numbers available under the cap.
USCIS has conducted similar random lotteries for past fiscal years. In Fiscal Year 2008, for example, USCIS conducted a random lottery for H-1B petitions subject to the cap received for processing from April 1 to April 5, because it had received a significantly higher number of petitions, almost twice as many, for the number of available spots under the cap. USCIS, however, can implement a random lottery at any time if it begins to receive a large number of petitions for a fewer number of available spots. A good example of this type of H-1B lottery is the one USCIS conducted at the end of January 2011.
However, if an employer submits an H-1B petition to USCIS on April 1, 2013, and the petition is accepted for processing—and spots are still available under the cap—then the petition will not be subject to a lottery.
It is unknown at this time exactly how quickly the H-1B cap will be reached, but petitioners may want to file the H-1B petitions by April 1, 2013, to ensure that they do not miss the Fiscal Year 2014 cap, or the lottery, if one is implemented.
For Further Information
If you have any questions about this Alert, please contact any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.