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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

The H-1B Lottery - What Do We Do Now?

by David D. Murray, Esq.

The U.S. Citizenship & Immigration Services, (CIS) announced on April 3rd that the H-1B cap had been reached.  Let's face it... CIS knew this would happen and planned accordingly.  They even split I-129 filings between the California and Vermont Service Centers - the question is, are there any H-1B trained adjudicators left at the California Service Center two years after they shifted the adjudication of all H-1B's to the Vermont Service Center... and if so, what other details did they have to pull them off to fill the gap?  And how will this onslaught of H-1B petitions on the first day of filing affect overall CIS service?   What is truly regrettable is that after last year's H-1B cap debacle, Congress did not address the needs of US employers by passing "comprehensive" legislation giving them the relief they need to hire qualified foreign workers by increasing the artificially low cap that harkens back to the levels set by law almost two decades ago, when "high-tech" had not yet reached the pages of Webster's Dictionary of the English Language.  But hey, correct me if I'm wrong, to my knowledge, never has been a Nobel Prize winning legislator come forth from the ranks of Congress.   Since CIS announced the H-1B cap was reached on April 3rd, under the regulations (did you even know about this regulation?), they will now hold a random "lottery" to determine which cases will receive the FY 2008 cap numbers. That's fair. A lottery . . . like the one we all won when we bought our $1 ticket at the 7/11. Or was it the 9/11... I can never remember.  I guess it depends on who owns the store, a Hindu or a Muslim.

In a Press Release dated April 5th, CIS announced a preliminary number of filings and the tallying of H-1B petitions received on April 2 and April 3 was continuing and that it will conduct a computer-generated random selection of cap-subject petitions filed on Monday (April 2) and Tuesday (April 3) to determine which cases USCIS will accept for processing. They did not, however, say how long it would take them to tally and generate, but they did tell us that on Monday and Tuesday, they received 133,000 "unique pieces of mail" containing H-1B petitions. This is lower that the original CIS estimate of 150,000, which was "based the initial estimate on amounts from manifests received along with the mail", whatever that means - were some lost?  Was it one of yours or one of mine? Then the Press Release goes on to say that they reached the updated number following a physical count of the mail. Each piece of mail may contain more than one H-1B petition, so it will take CIS a substantial amount of time to open and sort through that volume of mail.

As of Wednesday, April 4th, CIS reveals that 28,052 of the cases sorted are H-1B petitions subject to FY 2008 congressionally mandated cap, and 4,703 cases are exempt from the FY 2008 H-1B cap as employers filed those petitions for aliens holding a masterís degree or higher from a U.S. institution.

Normally, the H-1B lottery would consist of the cases filed through the day the cap is reached. In the case as it now seems to be, since although not announced until the second day, we may assume that the cap was reached on the first day of filing, the lottery will apply to all petitions received on both April 2nd and April 3rd (the first and the second days of filing).  But if the cap was actually reached on April 3rd, then the April 4th filings will be included - Who's on first?  We can't be sure because we don't know exactly whom it is that is doing the counting.  Certainly the manifests received along with the mail are unreliable, so much for Federal Express, etc, so who's left, the CIS Contractors, or the Directors of the California and Vermont Service Centers, who are staying up all night, counting the envelopes?  And if so, why did they not just cut it off after they threw the 65,000th Fed Ex envelope onto the pile?  Does the term "bedlam" apply here? Can you picture it?  Laurel and Hardy   But then, we can never be sure with anything CIS does, so nothing has changed - at least not in the 28 years I have been practicing immigration law. The only thing of which we can be sure is that, on Friday CIS employees will receive their paychecks and go out to party, while we patiently wait for them to provide us prompt service. Perhaps we should party with them... but you can't buy them a drink, because we are told that would be considered by the government to be a bribe of a government official, and likewise for having CIS employees as our guests at the traditional annual OCBA Immigration Section Holiday Party (we can no longer call it a "Christmas Party", because the OCBA says that is politically incorrect) - if the Section ever again has an annual Holiday Party.   The question is, will Premium Processing time requirements for the recently filed H-1B's be respected by CIS, and will the successful cap lottery winners have their petitions adjudicated within the required 15 days?  Perhaps, but the more burning question is, when will CIS figure the 15 days starts?  On the day they received it by Federal Express, and for which you have a receipt in your hot little hand?  Or will it be on the day CIS actually fees it in, after it qualifies under the lottery?  I believe we all know the answer . . . it will most certainly  be the latter and we have no control.  And if you don't like that... write your Congressman.  If your Congressman is Tom Tancredo, well, use your own judgment.   But the more important question is how long will it take CIS to conduct the lottery?  In reality - and that's what we immigration lawyers are concerned with - it could be days, weeks, months... yeah, you guessed it, "there jest ain't no such thing as justice."  Why did you already know that?  Perhaps because of the case you studied in law school where the burglar successfully sued the homeowner when he was injured by the trap the homeowner set in an attempt to thwart the repeated burglaries of his castle.   Our castles insecure, illegal aliens standing on every Southern California street corner, seeking work Americans will not do, US employers having shortages of scientists and engineers, offshoring being the watchword of the decade, Congress not effectively responding to the immigration crisis, all we can do is wait and see... remember, under the regulations, if CIS does not timely process a Premium Processing case (either approval, denial or RFE) you can demand return of your $1,000 Premium Processing filing fee.  How long it will take the Treasury to return it would remain to be seen, and what form you file for the refund, God only knows.   So, since CIS is under a 15-day time limit to adjudicate 65,000 H-1B cases, and it is doubtful the government will not want to return $65,000,000 (yes, that's sixty-five million dollars) in Premium Processing filing fees (plus the costs it would take to make those refunds) what will be the government's "CYA" response?... Be prepared for a boiler-plate RFE . . . Disingenuous, you bet, but legal under the regulations, to be sure.   You did file your FY 2008 H-1B cases Premium Processing, did you not?  If not, since CIS has no mandated processing time for regularly filed cases, even if you squeak in by winning the lottery and getting cap number, you may find your case languishing in the bowls of the Service Center, gathering dust until action is taken on it, perhaps sometime about next December (yes, I know, that's three months after your requested employment start date, but tough nuggies - call your Congressman).  Yes, that happened to one of my FY 2007 non-Premium Processing cases (the employer wanted to save the thousand) that I timely filed last April, qualifying for the FY 2007 H-1B cap - yay, rah - for a Marketing Manager of a very small company.    What happened in December 2006 when we finally got a response from CIS?  Of course, I received a boiler-plate Request for Evidence (RFE). Go figure.   And then what happened after I responded to the RFE on January 3, 2007 - a response that fully addressed and satisfied all points raised in the RFE?  Predictably, I received an arbitrary and obviously pre-determined boiler-plate denial, claiming the position of Marketing Manager was not a "specialty occupation" and did not require a university degree, and that the alien's qualifications seemed to indicate she was qualified for some other position (thanks for the tip) replete with generalizations like, "the petitioner has not demonstrated that..." ... and other purely factual, judgment-call determinations that are normally not effectively appealable.   And when did the CIS denial of that case come in the mail?  On March 25, 2007 - two weeks short of one year after filing. Yeah, "there jest ain't no such thing as justice."   Or maybe there is some justice, in a wry sort of way ... since CIS notified us of the denial just in the nick of time (just like on TV) to refile for FY 2008, we refiled under a different job description (thanking CIS for the heads-up) that was also in need by the employer - one that we knew was a tried-and-true specialty occupation, and for which the alien definitely qualified on the basis of her university transcript.    And yes, the employer this time paid the extra grand and filed Premium Processing and I dutifully sent it by Federal Express next-business day-delivery on Friday, March 30th. But now, notwithstanding doing everything right, we find ourselves at the mercy of the infamous H-1B lottery, rather than the first-in/first-out policy normally used by CIS. As Bob Dylan said in the 1960's, The Times They Are A' Changin', so "Come gather 'round people, wherever you roam, and admit that the waters around you have grown, and accept it that soon you'll be drenched to the bone, f your time to you is worth savin', then you better start swimmin' or you'll sink like a stone, for the times they are a-changin'. Come senators, congressmen please heed the call, don't stand in the doorway, don't block up the hall, for he that gets hurt will be he who has stalled, there's a battle outside and it is ragin', it'll soon shake your windows, and rattle your walls, for the times they are a-changin'."
  Now, time marches on, with some lessons learned, (1) unless, perhaps, you are filing for a Fortune 500 company, don't attempt an H-1B Marketing Manager; and (2) always file Premium Processing where it is allowed by the regulations; (3) don't ever trust the system; (4) the H-1B system must be changed to bring it into step with the reality of the current problems faced by US employers in filling high-tech and other specialty occupations.   And what is the reality?  Notwithstanding the position taken by immigration restrictionists and anti-immigrationists, there is no credible study that has determined that H-1B's take jobs away from Americans.  There is likewise no support for the position that H-1B foreign workers are paid sub-standard wages and in fact, there are safeguards built into the system that sometimes work and sometimes do not. Sure, there are some cheats, that's life, get over it, work to change it, but don't eliminate or restrict H-1B's.    The fact is, America does not educate enough scientists and engineers (or physicians and nurses for that matter, although not many nurses qualify for H-1B) to meet the needs, and future needs of the nation. I guess that rather than scientists and engineers, US graduates want to be writers, poets, philosophers and lawyers. Reliable statistics show that the US national average for unemployment is under 5% ... that is virtually no unemployment at all, because these statistics are not really accurate, but err on the high side because they take into account people temporarily between jobs and those who have simply dropped out of the job market, like stay-at-home moms and forty-year-old mid-life-crisis stumble bums who hold up placards at freeway entrances announcing to the world that they are homeless failures in the land of milk and honey, where the streets are paved with gold. To verify current unemployment statistics on a state-by-state basis, click here  Now, you noble immigration lawyers, "come gather 'round..." and go out there and slay the dragons of bureaucracy, write your Congressman and join Don Quixote de la Mancha, batting at windmills... the Windmills Of Your Mind, "Like a circle in a spiral, like a wheel within a wheel, never ending or beginning, on an ever spinning wheel, like a snowball down a mountain, or a carnival balloon, like a carousel that's turning, running rings around the moon..."


About The Author

David D. Murray, Esq. is an attorney with offices located in Newport Beach, California. A graduate of Ball State University and Western State University College of Law, Mr. Murray has been a practitioner and consultant in connection with business law and immigration matters since 1978. His practice concentrates in the areas of Civil Litigation, Copyright, Trademark, and Trade Secrets Litigation, Employment Law, Contracts, International Transactions, and U.S. Business and Family Immigration matters. Mr. Murray served in the U.S. Army from 1967 to 1969, including deployment to the Republic of South Vietnam, where in addition to regular military duties, he served as a professor of English at the University of Hue. Holding a Merchant Marine Captain's license for both sail and power vessels up to 100 net registered tons, Mr. Murray has sailed in excess of 100,000 miles in sailing boats between 22 and 197 feet in length. When not practicing law, or otherwise engaged in other various business endeavors, Mr. Murray is an avid Harley-Davidson motorcycle enthusiast, an amateur guitarist (electric and acoustical), five-string banjo picker, writer, poet, philosopher, backpacker, hiker, sailor, skier, and lover of the great outdoors.


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