The USCIS H-1B Prediction, Conspiracy Theories, and the H-1B Lottery

By Pam Prather

Calling Mulder and Scully….

Two weeks prior to the initial filing date for FY2014 HIBs, the USCIS published their prediction that the cap would be reached in 5 days.  This turned an otherwise normal H-1B filing ‘season’ in a down economy into a mad rush for employers and immigration practitioners.

Hmmmm…so why did the USCIS issue this memo?

There are several interesting theories out there as to why the federal agency would take this unprecedented step. Prior to this year, the USCIS only reported on ‘reaching the cap’ AFTER they started to receive applications – in other words, they used real data. Why would they pull these numbers out of the air for the first time ever?  Was it to raise awareness of immigration issues being addressed by Congress as we speak? Was it to inflate our perception of a job market turnaround?  Could it simply have been a way to avoid a protracted application period, allowing USCIS staff to settle in and get down to the real work immediately?

Many agree that without the announcement regarding the predicted high demand, the 2014 quota would likely not have been reached for several weeks – if not longer. Last year it took two months, 2011 took seven, and in 2010 the quota was not reached for nearly ten months. Is it a coincidence that – correctly or not – H1B demand is associated with our overall economic health?

I guess the question we ask ourselves is, who benefits from this year’s USCIS H-1B prediction?

Exactly. Clear as mud.

On a related note, how fair is it that they will use a lottery system for all the applications reached in the first five days? I don’t know about you, but we worked extremely hard for months to ensure that our clients’ petitions were received by USICS on April 1.  Unfortunately, under USCIS policy an H-1B petition received on April 4th or 5th has the same chance of being picked in the ‘lottery’ as a case received on April 1st.   Our politicians often talk about ‘fairness,’ but how fair is this?

Regardless, this year’s H-1B cap is over in 5 days.  Under current law, an employer cannot file a new H-1B application until next year.  Yet our employers need the flexibility to select qualified professional workers from a global pool right now in order to compete.  I wonder if Comprehensive Immigration Reform will cover this…..

Stay tuned!

Tags: H-1B Cap