H1B Lottery Process Documents Obtained by Filing FOIA Lawsuit

By law, there is an annual limit of 65,000 new H1Bs that may be approved each year, not including the 20,000 available under the advanced-degree exemption (i.e. master’s cap) and those filed for cap-exempt employment. As the United States Citizenship and Immigration Services (USCIS) typically receives far more cap-subject petitions than the statutory maximum, a random selection process is usually used, commonly referred to as the H1B lottery.

Despite the importance of the H1B lottery system, the USCIS has long-refused to release much information about how the lottery process is administered. As such, the American Immigration Lawyers Association (AILA) filed a request under the Freedom of Information Act (FOIA) to compel the USCIS to release records related to the operating procedures and policies on the administration of the H1B lottery. The USCIS initially resisted releasing the information, but after AILA filed a FOIA lawsuit, the USCIS relented and released thousands of records. More information on the FOIA suit is available in the MurthyDotCom NewsBrief, Lawsuit Seeks Details of H1B Lottery Process (09.Jun.2016).

USCIS Procedures to Accept and Process H1B Cap Cases

AILA representatives are still in the process of reviewing and analyzing the records provided by the USCIS. AILA, however, has released a preliminary set of five documents.

The first two documents are fiscal year 2015 H1B cap action plans for the California and Vermont Service Centers, prepared by the federal contractor that the USCIS hired to handle some of the administrative issues on the processing of the cap cases filed. The plans provide details on how H1B petitions were to be handled before and after the USCIS conducted the lottery. The plan for both service centers was roughly the same: petitions were to be received starting the first day of April and sorted based on standard quota / masters cap cases, and regular processing / premium processing cases. A barcode with a unique number identifier was to be placed on each case.

After this initial processing, the petitions were to be randomly selected using a random number generator. The selected petitions then were to be reviewed to make sure the minimum requirements for acceptance had been met. Those that met the minimum requirements were delivered to USCIS adjudicators. The USCIS was to review the data between the two centers to see if duplicate petitions were received and processed. Rejected petitions and petitions that were not selected were then to be returned the petitioner or attorney-of-record.

A third document is a guideline for personnel reviewing the petitions for acceptance. It gives guidance on all of the information that must be included at a minimum for the petition to be accepted initially. Most of the other information in these documents is either administrative or has been redacted.

USCIS eMails on Petition “Rejections” and Assigning Cases to Adjudicators

The remaining two documents were copies of USCIS eMails that shed more light on how the cap process works. The first eMail is from Juliet Fries, section chief for the California Service Center. It lists the top reasons that petitions were rejected during fiscal year 2014. These included: listing a start date earlier than October 1, 2014 on the I-129; providing incorrect fees, or failing to provide all of the required fees; sending the petition to the wrong service center; providing an unsigned labor condition application (LCA); or failing to provide an LCA, or providing one that was not certified.

The other eMail is from Holly Jackson, program support analyst, Internal Review Division, Office of Security & Integrity. This eMail discusses how H1B petitions were to be assigned to USCIS adjudicators.

Conclusion

As documents are reviewed and analyzed, it will be interesting to see if anything obtained through the FOIA filing uncovers any major revelations. MurthyDotCom will provide details as further information is released.

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