You’ve Filed the H1B Petition, Now What?

By Marylou V. Fabbo - Skoler, Abbott & Presser, P.C.

April 6, 2018

Many companies seeking approval for H1B workers are breathing a sigh of relief. They’ve finished weeks of running around gathering information from a number of sources to prepare and submit their Labor Condition Application (“LCA”), posted the LCA Notice, waited for the LCA certification from the Department of Labor, completed, reviewed and reviewed again the I-129 Petition, mailed it and several separate checks—all made out to the Department of Homeland Security—to the correct location.  Whew!  Now that the rush his over, what should you expect?

No Ticket Needed for This Lottery

On April 2, 2018, USCIS started accepting H1B petitions for the lottery for fiscal year 2019, which begins on October 1, 2018, and will continue to accept them through April 6th.   This week is not the lottery.  The H1B quota is 65,000 regular visas and 20,000 masters visas.  Of those 85,000, 6,800 are set aside for citizens of Singapore and Chile.  Incomplete applications will be rejected outright. Since there’s likely to be more than double the amount of petitions received than available, USCIS will hold a computer-generated random selection process—a lottery.  Based on past years, we expect that the actual lottery will take place in about a week, although no specific date has been set.  Those petitions selected by lottery will proceed to the next step of the process.

The Drawing

If your worker has “won” the lottery, his or her petition will be adjudicated at the appropriate USCIS service center.  Keep a watch out for a letter from USCIS.  All the petitions that were not selected in the lottery will be returned along with the fee.  USCIS also will inform all the selected petition holders and provide their case number so they can track the processing of their petition on the USCIS website.  

If You Doubled Down, Expect a Denial

If you tried to increase the chances of your petition being approved by filing multiple petitions, you actually decreased the likelihood that an H-1B visa will be approved.  The policy memo adopted from the recent decision, Matter of S-Inc, reinforces that an employer cannot file more than one H-1B petition for the same employee if the petition is subject to the H1B cap.  If  a company or “‘related entities,” such as parent company, subsidiary or affiliate, file multiple H1B petitions for the same employee, the petitions will be denied and/or the approval of all H1B cap subject petitions filed by related entities for that employee may be revoked.  If USCIS notices the duplicate filings, don’t expect to get your fees back.

Hitting the Jackpot

Unfortunately, not all petitions that are selected for the lottery are approved, and the processing time may take a few weeks or a few months.  The employer or its immigration attorney may receive a Request for Evidence (RFE) to submit more information.  If the petition is approved, the approval notice will be mailed to the employer.

Skoler Abbott recognizes that this can be a stressful time both for employers and employees while they wait for the result.  Our attorneys can assist you in responding to an RFE and provide assistance if questions arise concerning the H1B process or an employee’s status.