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H-1B Lottery Brought Under the Freedom of Information Act

When the number of H-1B petitions submitted that are not cap-exempt exceeds the allotted 85,000 annual visas, USCIS uses a randomized, computer-generated lottery to determine which visas are accepted for consideration for these visas. All visas selected are reviewed by CIS, and the rest are sent back to the petitioners and their employers. For the past ten years, the number of visas submitted has exceeded the cap. In the past four, this has happened within a week. This year, 236,000 H-1B petitions were submitted for fiscal year 2017. The H-1B lottery has been a staple of the process for about a decade now, and still lawyers, employers, and H-1B candidates have no idea how it actually works.

This year, the American Immigration Council and Hughes Socol Piers Resnick & Dym Ltd. brought the H-1B under the Freedom of Information Act. The intention is to audit the system to see how it works, and to make sure the lottery is as fair and impartial as CIS claims it to be.

The specific questions under investigation are:

  1. How does the electronic selection process work?
  2. How does the process for rejecting or accepting a petition function?
  3. How does CIS determine how many petitions to select for the lottery, and how does CIS determine when they have reached the limit for petition approval?
  4. How does CIS track visa numbers?
  5. Does CIS actually allocate all of the visa numbers available?

Unless major immigration reform happens to significantly increase the number of H-1B visas available annually, the lottery is here to stay. That means it needs to be made public record how it works. Candidates and their employers and lawyers have no control over whether or not any given petition is selected, but checking the process to ensure that it is up to statutory standards, and as impartial as it claims to be is necessary for accountability.

If your petition, or your employee or client’s petition is selected, it must be impeccable. CIS selects more petitions than there are H-1B visas available in the lottery process, then reviews the petitions they receive. That means they are looking for red flags, and many petitions must be rejected as part of the process. It is imperative that you get it right the first time. While RFEs can be answered, it is always best to prevent getting one in the first place.

If your education, or your employee or client’s education is from outside of the United States, never file without a thorough credential evaluation that clearly spells out the US equivalent of your client’s degree, with a specialization that matches their job offer. We see so many RFEs every year that could have been prevented simply by taking this step before CIS has to ask you, or your employee or client to do so.

About the Author

Sheila Danzig
