H1B Cap and Lottery Issues Posted Mar 23, 2007 ©MurthyDotCom As regular MurthyDotCom and MurthyBulletin readers are aware, the first filing date for cap-subject H1B petitions is fast approaching. There is an interesting nuance in immigration law with respect to what happens if the U.S. Citizenship and Immigration Services (USCIS) receives the maximum number of petitions on the first day of filing. Rumors abound that this might occur, but there is no way of knowing until the cases are submitted and the count begins. If the USCIS receives the maximum allowable number of cases on the first day, then the lottery for cap numbers will actually include cases considered to be filed on the first two filing days. ©MurthyDotCom When is the First Day of Filing? ©MurthyDotCom H1B petitions for the Fiscal Year (FY) 2008 H1B cap, which is to begin on October 1, 2007, can be filed six months in advance (i.e. April 1, 2007). Because April 1st falls on a Sunday this year, the USCIS will treat all petitions received on both Saturday, March 31st, and Monday, April 2nd, as if they were filed on April 2nd, 2007, the first business day in the filing period. If the cases received on March 31st and April 2nd are sufficient to meet the H1B cap, then the lottery will be a bit different from past years. ©MurthyDotCom What if the H1B Cap is Reached on April 2nd? ©MurthyDotCom If the H1B cap is reached on April 2nd, the USCIS will hold a lottery to determine which cases will receive one of the limited cap numbers. Normally, a lottery consists only of the cases filed on the last filing day - the day the cap is reached. Under the USCIS regulations, however, if the cap is reached on the first day of filing, the random lottery will apply to all petitions received on both April 2nd and April 3rd (the first and the second days of filing). Of those petitions, the ones selected in the random lottery will be accepted for processing. Given the volume of expected filings, it is likely that there will be a delay between the day the cap is reached and the notification that it has been reached. We therefore do not expect to know on April 2nd whether the cap has been reached. ©MurthyDotCom Does this Change the Need to File by April 2nd? ©MurthyDotCom This does not make it any less urgent to file cases so that they reach the USCIS on March 31st or April 2nd. This interesting nuance only applies IF the cap is reached on April 2nd. No one knows if that will happen, and, as mentioned above, we do not expect to know even on April 2nd. If that does happen, then it is correct that a March 31st / April 2nd filing would have no advantage over an April 3rd filing. ©MurthyDotCom If the cap is not reached on April 2nd, then all the cases filed on that day would be safe from the standpoint of having a cap number available. The cases filed the following day (or any day thereafter until the cap is reached) would only be safe if there are enough cap numbers to cover them. If the cap is reached after April 2nd, there will be a lottery consisting of a single day's filings for the cases filed on whichever day after April 2nd the cap ultimately is reached. Copyright © 2007, MURTHY LAW FIRM. All Rights Reserved
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