Well, another disappointing H-1B season as I had NOT ONE client win the H-1B lottery this fiscal year. It made me realize that I actually had been lucky over the past 5 years since the lottery process has been really competitive with one or more clients winning – but not this year. The H-1B gods were not on my side. And now, USCIS announced in July that all rejections have been mailed back, just putting a final nail in the coffin on any hope for being picked in the H-1B lottery.
The H-1B “lottery” refers to the process where a lottery takes place each April because we have more persons applying than our immigration system permits due to a cap of 85,000 H-1B visas mandated for each fiscal year (20,000 only carved for persons who obtained a Masters’ Degree or higher in the US). This a limit mandated by Congress and not changed since 2003, when the law then automatically allowed the cap to reduce from 195,000 to 65,000, which was the ORIGINAL cap set in 1980. Obviously, the US economy is much larger in 2016 than in 1980, but the Republican House of Representatives will not do anything to increase visas for foreign nationals, even if highly-skilled.
In any event, my unluckiness has made me wonder if this lottery business is truly legitimate. How do I know if my cases were actually even in the lottery and not on some clerk’s desk because he or she forgot to enter the “number” in the system? The lottery is literally a process where all H-1B applicants who apply in the required time frame, are randomly selected and the winner receives a visa; the loser does not and is forced to try again the following year.
Trying to get USCIS to disclose how the lottery process works or to even obtain any updates has become increasingly frustrating over the years. July 8th is when USCIS this year said all cases that were not selected were sent back – this is 3 months after these cases were allegedly accepted. Please note that USCIS does NOT notify the applicant in the mean time during this entire time frame whether they were selected – you only find out by getting your case rejected and sent back to you. The Applicant has no idea if his case was lost, accepted, rejected, left at the clerk’s desk – no idea if the lottery was handled FAIRLY and equitably.
This year a lawsuit was filed against DHS for the lack of transparency in the lottery system, which is right-on given that hundreds of thousands of applicants are waiting with bated breath on whether they have won the coveted H-1B visa. The American Immigration Council and the American Immigration Lawyers Association (AILA) jointly filed the lawsuit in hopes understanding how “the electronic selection process works, what the process is for accepting or rejecting a petition in the lottery, how USCIS determines how many petitions to select in the lottery, how USCIS decides it has enough petitions to meet the numerical limits for petition approvals, how USCIS keeps track of visa number usage, and if USCIS actually allocates all of the available visa numbers.”
Perhaps I will still be unlucky next year, but I may get more information from the government on whether the process was at least fair – sadly that is all I can hope for nowadays until Congress decides to overhaul the silly 85,000 limit and tie the H-1B visa cap to more rational statistics such as the size or activity of the US economy.
For further information on the H-1B visa, contact Catherine Brown in Denver or Boulder at 303-322-2117.