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When USCIS announced several weeks ago that premium processing for Fiscal Year 2018 cap subject H-1B petitions would be suspended for the six month period between the beginning of the acceptance period for these petitions on April 3, 2017 and the beginning of the new fiscal year on October 1, 2017, there was something of at least a mini-uproar in the media.
At the time, I regarded this as overblown, if not just merely a tempest in a teapot, and I suggested that the ostensible reason for this temporary suspension of Premium, namely to shift agency resources over to reducing the unconscionably long backlogs in regular H-1B processing, now taking as long as eight months from filing, made sense and should be taken at face value.
However, on March 15, 2017, USCIS came out with another announcement which was remarkable, not for what it says, but what it leaves out, compared to last year's similar. but not identical. announcement,
This year's announcement, for the reasons discussed below, may be a cause for much greater concern for the future viability of the H-1B program, as well as increased hardship and lack of fairness for cap subject H-1B petitioners and prospective H-1B employees in this year's expected "lottery".
Remarkably, what could be a crucial difference in this year's USCIS announcement compared to the ones for last year and previous years when the pathetically small cap subject annual quota limit of 65,000 visas (85,000 for US master's degree holders) was also oversubscribed (as this years almost certainly will also be) has gone almost entirely unnoticed by the media, and even by most, if not all H-1B experts. This is at least according to my own Internet research.
To borrow the youngest child's traditional question from the coming Jewish Passover season, What makes this year's USCIS H-1B cap "lottery" announcement different from all other previous H-1B "lottery" announcements?
The answer, my child, is that all of the previous lottery announcements stated that USCIS would accept all petitions arriving at the agency during the entire first business week of the application period, not just on the first day, which this year is on Monday, April 3.
This year's announcement, as will be seen below, omits this promise of a "grace" period until the end of the week for accepting cap subject petitions for inclusion in the lottery, and says merely that USCIS will accept petitions beginning on April 3, and will notify the public when the cap has been reached.
To see the full announement, go the USCIS home page, www.uscis.gov
Judging by previous years, it is almost inevitable that the cap will be reached on the first day of acceptance. So what will happen with estimated thousands, or tens of thousands of other cap subject H-1B petitions which will almost certainly arrive later that week, between April 4 and April 7, due to factors beyond the petitioners' control, such as bad weather, inevitable flight delays, or other similar reasons?
Will they be rejected and returned?
But that is not the only thing that could make this H-1B cap year different from all other such years. In all other years, USCIS announced that if the cap was oversubscribed, there would be a "computer-generated lottery system" (to quote last year's announcement, see below).
This year's announcement says nothing about a lottery, leaving open the possibility that USCIS might be planning to use a different selection system about which nothing has been announced whatsoever, and which, conceivably, could be used to "rig" the H-1B filing selection system for or against certain types of H-1B petitions, just as has been proposed in certain bills that are introduced in Congress with some regularity, but have never been passed.
Will the heavy hand of the Trump administration, which has not exactly shown a welcoming attitude either to the H-1B visa as a whole, or to the highly skilled South Asian professional workers who make up a large percentage of the beneficiaries of this visa, try to tilt the scales of the selection process in order to pick the immigration priorities which Trump and two of his top immigration advisers, Stephen Bannon and Jeff Sessions (not to mention other top advisers such as Kris Kobach and Stephen Miller) have previously made clear that they subscribe to?
And let there be no mistake about what those immigration priorities are, according to published statements of both Sessions (in his January 2015 immigration manifesto for fellow Congressional Republicans) and Bannon, in a published interview with Trump himself (in which Trump played the role of the "liberal" on H-1B visas and immigration in general, at least compared with Bannon).
(Link will appear in my next comment on this topic.)
Hint: For anyone who has doubts on this point, neither Bannon or Sessions is on record as welcoming more South Asian or any other non-European immigrants to America, no matter how skilled and talented they may be,
To be continued in a forthcoming comment.
Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. For more than 35 years, Roger has been helping skilled and professional immigrants from diverse parts of the world obtain work permits and green cards.
Roger's practice is concentrated in H-1B, O-1, PERM and other skilled and professional worker visas and green cards. His email address is firstname.lastname@example.org
Updated 03-30-2017 at 01:23 PM by ImmigrationLawBlogs