Update on H-1B Visa Cap: Employers May Be Waiting for News on Their H-1B Petition

Employers who have filed cap-subject H-1Bs during the first week of April 2013 are eagerly awaiting a Receipt Notice from the USCIS, which would definitively confirm that their H-1B petition was counted towards the annual cap and will be adjudicated. Unfortunately, they may need to wait much longer for such confirmation.

The USCIS has announced that it is first issuing Receipt Notices for cases filed with payment for Premium Processing (additional $1225 to expedite the case). The data entry for Premium Processing cases should be completed by April 15, 2013, and employers, or their attorney, should have received Premium Processing Receipt Notices by that date or shortly after. While the USCIS usually e-mails Premium Processing Receipt Notices prior to mailing the physical Receipt Notice by USPS, in some instances the USCIS may fail to send the e-mail notice. Therefore, employers who paid for Premium Processing, and have not yet received an e-mailed Receipt Notice, may still receive a physical Receipt Notice by mail shortly after April 15, 2013.

The USCIS will begin data entry for all regular processing (where the additional $1225 fee for Premium Processing was not paid) only after all of the Premium Processing cases have been entered and receipted. On April 12, 2013, the USCIS announced at a conference of the American Immigration Lawyers Association (AILA) that data entry for regular processing cases will likely not be completed until sometime in May 2013, and that official rejection notices for those H-1B petitions not selected in the lottery (where the USCIS returns the original H-1B petition and all of the filing fees) will be sent out after that. In 2008, the last time that the USCIS conducted an H-1B lottery, the USCIS did not finish issuing receipt notices until late May. Therefore, employers may need to wait several more weeks before knowing whether their employee’s H-1B petition was selected in this year’s lottery. Unfortunately, the USCIS will not be accepting Premium Processing upgrades until after they issue the initial receipts. Therefore, it is not possible to upgrade to Premium Processing to quickly determine whether your H-1B was selected in the lottery.