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Employment Law StrategistFeaturesImmigration LawLabor LawLJN Newsletters

Your H-1B Petition Was Not Selected in the Lottery

By Michael J. P. Schewe

Fairly soon, an estimated 150,000 businesses in the United States will receive some bad news: U.S. Citizenship and Immigration Services (USCIS) will not be considering their H-1B petitions for skilled foreign workers. The petitions will be rejected without any analysis as to their merits. The candidate may be expertly qualified and the job may be a specialty occupation. Yet these businesses with a clear need for temporary help will have to explore other ways to keep their prospective or current employee working for their company, or face the possibility that the foreign worker may be forced to return home.

The H-1B program is capped at 85,000 visas per year. When the economy is thriving, as it has been the last four years, the cap is met within the first five days of the application period. USCIS is required to put any petition filed during those first five days into a “lottery,” then randomly select which petitions will be reviewed. For Fiscal Year (FY) 2017, USCIS received approximately 238,000 petitions within the first five days. It received 233,000 in FY2016; 172,500 in FY2015; and 124,000 in FY 2014. It is expected that FY2018 will meet or exceed the petitions filed in FY2017.

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