“I try not to worry about the future – so I take each day just one anxiety attack at a time.” Tom Wilson, American cartoonist (not an immigration lawyer)
Beginning April 1, USCIS began accepting cap-subject H-1B petitions for the 2016 fiscal year, and thus another flood of petitions washed over USCIS Service Centers in California and Vermont. This year, April Fool’s Day was an appropriate time for immigration attorneys and their clients to pause, reflect, and immediately begin freaking out—“What if my H-1B petition is not accepted for processing?” “What if my petition is lost in the mail?” “What if my petition was eaten by a ravenous dingo while being delivered to the California Service Center?” Haunted by dread and uncertainty, we furiously began tracking the status of petitions being delivered to USCIS by Fed Ex, UPS, U.S. Express Mail, Pony Express, carrier pigeon, and unmanned drones. It didn’t take long for the horror stories to emerge.
Immigration attorneys, always a paranoid lot and unable to confirm the April 1 delivery of H-1B cap petitions shipped via FedEx on March 31 to the Vermont and California Service Centers, were told that these centers had reached their capacity and were turning away delivery trucks (likely with the assistance of armed DHS agents!) Our worst fears were confirmed! Fortunately, cooler minds prevailed and the American Immigration Lawyers Association called USCIS and were told that neither Service Center had turned away delivery trucks. The petitions would be delivered. That calmed our nerves until the calls from our clients began, expressing the same fears.
But sometimes our anxieties are justified. A few years back, a freak snowstorm in Memphis kept Fed Ex planes from delivering cap-subject petitions on April 1. Logistics problems like this led USCIS to implement a five-day petition acceptance window. Subsequent to this change, USCIS announced in both 2013 and 2014 that it had received a sufficient number of H-1B petitions by the end of the first week in April to reach the cap. Last year, USCIS received 172,400 H-1B cap-subject petitions for only 85,000 visa numbers. We again expect a similar announcement by Tuesday, April 7, 2015. As in past years, USCIS will use a computer-generated lottery for all cap-subject petitions received to determine which lucky ones will be accepted for processing.
What our anxieties do reflect is an understanding that the system is broken and that available H-1B visa numbers are insufficient. The current law limits to 65,000 the number of new H-1B visas for bachelor degree-level candidates and 20,000 for advanced degree graduates of American universities. Legislation proposed in 2013, the Border Security, Economic Opportunity and Immigration Modernization Act, would raise the cap to between 115,000 and 180,000 visas based on employer demand and unemployment data. However, this bill has floundered in Congress and no remedy appears in sight. It thus becomes imperative that affected parties, be they employers, foreign workers, or immigration attorneys, reach out to our elected representatives, voice our concerns, and demand action. After all, a nation “of the people, for the people, and by the people” must be heard if they want something done.