Timing is everything. That’s the upshot of a recent decision from the Administrative Appeals Office of the U.S. Citizenship and Immigration Services (USCIS) to an H-1B appeal. The decision, which denied the appeal, provides guidance to USCIS employees when evaluating H-1B petitions and to companies sponsoring H-1B candidates.
The H-1B Process
The H-1B visa enables U.S. companies to employ foreign workers in jobs that require special expertise, such as science, technology, engineering, and mathematics.
USCIS begins accepting H-1B petitions on the first Monday in April each year. USCIS issues a notice when it receives enough petitions to reach the annual cap of 85,000 H-1B visas, which includes 20,000 reserved for candidates with a master’s degree or higher. This year, USCIS received 199,000 H-1B petitions, down from more than 236,000 petitions received last year. This year was the first time in five years that the number of H-1B petitions submitted has declined.
USCIS uses a computer-generated random selection process—or “lottery”—to select enough petitions to reach the 20,000 cap for candidates with a master’s degree or higher first. Any unselected petitions go into the regular lottery for the remaining 65,000 H-1B visas.
Each petition selected in both lotteries will receive a letter from USCIS. USCIS will review and accept or reject petitions. USCIS usually selects more H-1B petitions to review than the available cap for the advanced degree and regular pools to account for petitions that will be denied, rejected, or withdrawn.
Petitions that were not selected will be returned to the filing lawyer or employer with the fee. USCIS will not return fees for duplicate filings for an employee.
The recent USCIS decision stemmed from the case, Matter of A-T- Inc. A company submitted an H-1B petition on behalf of a candidate who possessed a master’s degree from a university in Silicon Valley. The company submitted the H-1B petition for inclusion in the lottery for candidates with a master’s degree or higher.
However, when the candidate earned his master’s degree, the university was neither accredited nor pre-accredited by a nationally recognized agency. His alma mater received its pre-accreditation the year after the candidate received his degree. Because of that, USCIS denied the H-1B petition. The denied petition was not entered in either the lottery for candidates with an advanced degree or the general lottery.
The company appealed that decision, arguing that the candidate’s university was accredited when the H-1B petition was filed. Moreover, the company asserted that its H-1B petition should have been included in the H-1B general lottery.
The USCIS Administrative Appeals Office dismissed the company’s appeal.
USCIS reiterated that to qualify for an H-1B for master’s or higher degree candidates, the institution must have been qualified at the time the beneficiary earned a degree. A qualified institution is a public or nonprofit educational institution that has been granted accreditation or pre-accreditation status by an agency recognized by the U.S. Secretary of Education.
USCIS also reiterated that a denied petition from the advanced degree pool won’t be entered into the regular lottery. Moreover, the determination by USCIS that the company’s H-1B petition was ineligible to be included in the advanced degree lottery was issued after the “final receipt date,” when USCIS had received enough H-1B petitions to reach the annual cap.
The Next Lottery
It’s never too early to start planning for the H-1B lottery. The Alcorn Immigration Law team helps employers and their prospective employees with filing H-1B petitions. We also help companies and individuals devise alternatives if an H-1B petition is not selected in the lottery. Contact us.