Elizabeth Reichard*

The U.S. Citizenship & Immigration Services (USCIS) just announced that it has reached the H-1B cap after having received 150,000 H-1B petitions on April 2, 2007. April 2 was the first day on which a Fiscal Year 2008 H-1B petition could be filed with the USCIS under the congressionally mandated yearly cap of 65,000. That day, the USCIS received petitions for more than two times the number of visas available. Industry experts speculate that an additional 50,000 petitions were received on the second filing day, April 3, 2007. There has been no indication as of yet as to whether the H-1B Master’s Cap of 20,000 visas has been reached, although it is possible considering these unusually high numbers.

So what does this mean for the thousands of petitions that were filed on the first day? Unfortunately, it means that not all approvable petitions will result in H-1B visas. The USCIS will use a computer-generated random selection process (a.k.a. lottery) for all cap-subject filings received on April 2 and April 3, 2007. Lottery winners will be processed accordingly and will receive H-1B visas if approvable. Lottery losers will have their petitions returned to them, along with the appropriate filing fees. If the 150,000 estimate is correct, each petition will have a 43% chance of winning the H-1B lottery and being processed. If the second day speculation of 50,000 visas is correct, each petition will have only a 33% chance of being processed.

Please note that under the lottery system, “slightly late” filers will be somewhat protected. All petitions received on the second filing day (Tuesday, April 3, 2007) will be treated as if they were received on the first day. Those petitions will be entered into the same lottery. Any petition received on or after April 4, 2007, will be rejected and returned to the petitioner.

For more information about the H-1B cap, please refer to the attached USCIS press release. Click Here.

* Elizabeth T. Reichard is an Associate at Cyrus D. Mehta and Associates, P.L.L.C, where she practices primarily in the area of immigration law. She is a graduate of the College of the Holy Cross and Case Western Reserve School of Law, where she was the Editor-in-Chief of the Journal of International Law. Ms. Reichard is the Secretary of the Immigration Committee for the New York City Bar Association as well as the Secretary of the Board of International Partners in Mission, an international non-profit organization working to empower women, children, and youth. She is admitted to the bar of the State of New York.

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