FY2010 H1B Lottery - Questions and Answers
Posted Mar 27, 2009
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The USCIS's fiscal year 2010 (FY2010) H1B cap season filing eligibility starts April 1, 2009. Compounded by anxieties over the current economic situation, employers and employees have many questions regarding the likelihood of an H1B lottery occurring again this year, as well as about the logistics of such a lottery. Following, we at the Murthy Law Firm have provided answers to some of the more pressing concerns of our readers.
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How does the lottery work?
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There is a limit to the number of first-time H1B cases that can be filed each year. These filings start on April 1, 2009 for the FY2010 quota or "cap." The USCIS changed its regulations last year to allow a minimum window of five business days in April each year for the USCIS to receive H1B cap-subject cases. Thus, if the cap limit is reached during any of the first five days, a random lottery selection then will be conducted to determine which cases filed within the five-day timeframe will be eligible for a cap number. The cases then are reviewed and, if approved, generally are counted against the cap.
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What happens if the H1B cap is not met within 5 business days?
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If the cap is not met during the first five days, then filings will be accepted for additional days, until the cap is met. There will be a lottery, then, of the cases received on the day the cap is met, only. All earlier cases would not be subject to this lottery, and would be eligible for a cap number, if approved.
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What happens to the U.S. masters' quota H1B cap filings?
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Based upon last year's procedures, the lottery actually is conducted in two steps. There are two separate cap allocations. There are 20,000 "advanced degree" cap exemptions, for cases filed for foreign nationals who have completed U.S. masters' degrees or above. This is separate from the regular cap of 65,000 (minus a set aside for certain treaty cases). The USCIS will first determine if advanced-degree cap has been met in the first five days. If so, a lottery will be conducted for those cases. Any cases not selected would be eligible then for consideration and subject to the H1B random lottery under the regular cap. If the regular cap is reached in the first five days, then a lottery would be conducted consisting of all the regular cases filed in that timeframe, as well as any advanced-degree cases that are not selected in the advanced-degree lottery. (If only the regular cap is met in the first five days, then the lottery of those cases would not include advanced degree cases.)
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When can we expect to find out if the quota is met?
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The USCIS has made improvements to its counting and lottery system, so that announcements about the number of filings normally are issued fairly quickly. Last year, they provided information on the number of cases received within about a week, and also advised of the date set for the lottery.
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Will there be a lottery this year?
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Yes, it is almost certain that there will be a lottery of some type. In order for there not to be a lottery, the H1B cap number would have to be sufficient to last the entire USCIS fiscal year. What is not certain, and will not be known until the USCIS makes an announcement, is whether there will be a lottery of those cases filed during the first five days of filing. There is a great deal of speculation on this, as it is expected that filings will be reduced due to the downturn in the economy.
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How will the economy affect H1B filings?
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Many expect that the weaker economy and job losses among various industries, the recent TARP restrictions on hiring "new" H1B workers, and the overall economic climate will result in a reduction of H1B filings. Last year, there were approximately 30,000 cases filed toward the 20,000 advanced-degree cap exemptions. The cases filed toward the regular cap were more than double the available cap numbers. Thus, with a downturn in the economy, it is likely that the cap numbers will be sufficient for most, if not all, of the advanced-degree cases filed in the first five days. There is even a possibility that the advanced-degree cap could last longer than five days. However, for this to happen, the cases will have to be reduced by more than 30 percent. There have been reports from some lawyer of reductions in excess of 30 percent, so this is entirely possible. However, no one should rely upon speculation and delay filing a case.
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What are the predictions for H1B cases under the general quota?
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The regular H1B cap for FY2009 was exceeded in submissions by more than double those allowed in the first five days of filing. It would seem that one's odds of inclusion in the cap may be more favorable this year, with the expected reduction in filings. A lottery of the regular cap cases filed during the first five days is still possible, however. The number of case filings would have to drop by more than 50 percent in order for there to be enough numbers to go beyond the first five business days. It is difficult to predict, with any degree of certainty, how the timeframe for the H1B lottery under the general quota will unfold.
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Conclusion
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The volume of H1B cases that will be filed for the FY2010 cap is expected to be well below that of the FY2009 filings. However, until the H1B filings are counted, no one can predict, with certainty, when the lottery will occur. Any official information on the H1B cap and lottery will be reported to MurthyDotCom and MurthyBulletin readers as soon as it becomes available.