Making Sense of the H-1B Lottery

By Jeffrey C.P. Wang and Rita Eng Bates

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When people first hear about the H-1B "lottery," they may understandably believe that they can purchase a ticket to win a visa if their number is drawn. After all, don't most lotteries involve paying for a chance at winning a prize? Unfortunately for petitioners, the sad truth is that U.S. Citizenship and Immigration Services (USCIS) does not do raffles, and they certainly do not give away the highly-coveted H-1B "specialty occupation" visa.

The Random Selection Process

Here, the word "lottery" is simply used to describe the computer-generated process by which USCIS randomly chooses H-1B petitions for consideration. And while such a selection process is only necessary when there are more people seeking H-1Bs than there are visas available - to give everyone a fair and equal chance - this lottery system must now be employed every year because the demand for H-1B visas has far outpaced supply.

In 2015, for example, the filing window for FY2016 H-1B visas opened on April 1, but then slammed shut on April 7 - just one week later. In this brief period of time, USCIS was inundated with over 230,000 petitions, greatly surpassing the congressionally mandated H-1B cap. Currently, the total number of H-1Bs available each year is only 85,000, which includes 65,000 visas under the general category, and 20,000 visas under the advanced degree exemption.

What happens if your petition is not selected?

Before conducting the lottery, USCIS completes the initial intake for all petitions received during the filing period. After this is completed, USCIS first randomly selects the 20,000 advanced-degree petitions. Any unselected petitions that are covered by this exemption will become part of the random selection process for the 65,000 general limit. The agency will reject and return the filing fees for all such unselected petitions. But fees will not be returned for duplicate filings!

USCIS will, however, continue to accept petitions that are otherwise exempt from the cap after the filing period closes. For example, USCIS will continue to process petitions to: 1) extend the amount of time a current H-1B worker may remain in the United States, 2) change the terms of employment for current H-1B workers, 3) allow current H-1B workers to change employers or, 4) allow current H-1B workers to work concurrently in a second H-1B position.

Further, some petitions will be marked as "wait-listed" which means that they may replace selected petitions that are subsequently denied, withdrawn or that are otherwise found to be ineligible.

IMPORTANT! Petitioners/Beneficiaries must understand that being selected in this lottery process does not mean they are guaranteed to receive an H-1B visa. It only means that they made it over the first hurdle and that their filing will at least be considered for approval by USCIS. The petition must still undergo a thorough examination process, and only those that have provided all the required documentation and otherwise qualify will be approved.

Eligibility

As noted in our previous article, "4 things you should be doing to prepare for H-1B season right now," the number one concern is that the job under consideration satisfy the requirements of a "specialty occupation." The position must be in the same field as your area of study and meet at least one of these criteria:

  • The minimum requirement for the position is a bachelor's degree or higher
  • This degree requirement is common for such a position in its industry, or the job is so complex or unique that it can only be performed by someone with a bachelor's degree in a field related to the position
  • The employer normally requires a degree or its equivalent for the position
  • The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor's or higher degree

If, however, the job qualifies as a specialty occupation but the Beneficiary does not have a bachelor's degree in a related field, he or she may still qualify by having special licensing, certification, training, etc. In general, three years of work experience in the field is treated as one year of college studies. Visit Understanding H-1B Requirements on the USCIS website to learn more.

Understanding the Receipt Number

After the lottery selection complete, USCIS will send the Selected H-1B Petitions List to the appropriate service center to continue with the final processing. Each petitioner will then receive a notice that includes a 13-digit alphanumeric receipt number, such as WAC-15-904-31989, that can be used to track the status of the petition. Below is a brief explanation of what the example receipt number above means:

WAC-15-904-31989

I. Three letters indicating the filing center of the H-1B petition. There are only two such filing centers for H-1Bs: 1) WAC stands for Western Adjudication Center, which is located in California; 2) EAC stands for Eastern Adjudication Center, which is located in Vermont.

II. Two digits indicating the filing year.

III. Three digits indicating the computer working day in the fiscal year in which the receipt was processed. For example, October 1st - the first day of the fiscal year- would be 001.

IV. Five digits indicating the case number.

Once this receipt number is obtained, one can use it to track the status of their petition by going to https://egov.uscis.gov/casestatus/landing.do and inputting the digits into the field.

Request for Evidence

At any stage of this process, the petitioner may also receive a request for evidence (RFE) if the petition is lacking required documentation/evidence (initial evidence) or the officer needs more documentation or additional evidence. An RFE will indicate what evidence or information is needed, where to send the evidence, and the deadline for the response. Petitioners receiving an RFE may call USCIS at 1-800-375-5283 for assistance.

Conclusion

Since it is likely the USCIS lottery will be necessary again next year, it is vital that petitioners have all of their paperwork ready well in advance of the April 1st opening day of the H-1B filing season. Otherwise, the window of opportunity may suddenly close without warning, and one may miss the chance to participate in the lottery altogether. For while FY2017 may seem a long way off, it is not too soon to begin making plans and preparations with the guidance of an experienced immigration law firm right now!