H-1B Visa Applications Hit Cap; USCIS to Implement Lottery

If your H-1B visa application hasn’t been submitted, you’re out of luck: US Citizenship and Immigration Services just announced that the cap on those visas was reached on April 5, 2013, a mere five days after the application process began.

What’s worse: even if your application was submitted before last Friday, you STILL may be out of luck. Why? Because USCIS also announced that they received more applications than they can process, so they’ll be awarding visas through a lottery rather than the traditional “first-come, first-served” method. From attorneys at Morgan Lewis:

“The USCIS will utilize a computer-automated random selection process (lottery) for all 2014 fiscal year H-1B cap-subject petitions received between April 1, 2013, and April 5, 2013. Advanced degree exemption petitions will undergo the random selection process first. Those advanced degree exemption petitions not selected will be added to the general pool for which there are 65,000 visa numbers available.”

What to do if you didn’t get the visa? Not much, writes attorney Ian Scott of Scott Legal Services. But, he suggests, you might consider:

1. “Make sure that you were in fact subject to the cap. For example, if you previously had an H-1B Visa, there is a good chance that you were not in fact subject to a cap and you should have completed your application selecting the ‘cap exempt’ option…

2. You could also consider investigating other Visa options. For example, if the company you currently work for is a multi-national company where you have worked outside of the United States for a period of time, you may want to consider an L-Visa. Also, if you are Canadian or Mexican, you may want to consider a TN Visa… Finally, if you would like to start your own business, you could consider an E-2 or EB-5 Visa….

3. Lobby Congress – Contact your Senate and House Representative. President Obama has received hundreds of letters from technology and other companies asking him to assist with the effort to get Congress to increase the Cap numbers.”

But there is some good news, explains Barbara Chin at law firm Mintz Levin:

“Despite the quota being filled, USCIS will continue to accept and process H-1B petitions exempted from the H-1B cap, DOD cooperative research worker petitions, and Chile/Singapore H-1B1 petitions. Petitions will also be accepted for H-1B petitions which seek to:

  • extend the stay of a current H-1B employee;
  • change the terms of employment for an existing H-1B worker;
  • change H-1B employers; or
  • secure concurrent H-1B employment.”

Details of the lottery should be made available later this week.

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