The United States Citizenship and Immigration Services (USCIS) has started mailing rejection notices to the applicants who were not selected in the H-1B lottery. It completed mailing all receipts for selected cases on May 24, 2008.

H-1B is a nonimmigrant visa category for persons in specialty occupations, which require at least a Bachelor’s degree or its equivalent.  Such specialty occupations include, among others:computer professionals, teachers, doctors, lawyers, engineers, architects, physical therapists and accountants.     

Once again this year, U.S. companies faced the problem of not having enough H-1B visas for their highly skilled workers.  This is particularly true of big U.S. tech companies such as Google which reportedly failed to get H-1B visas for 90 of its 300    H-1B applicants.  That is roughly 1/3 of its total H-1B applications.  Our office was more fortunate in getting about two-thirds of our H-1B applications selected in the random selection process.    

Aside from not being chosen, some applications have been denied outright due to technical deficiencies in submission as well as duplicate filings which are prohibited.   Some “duplicate” filings are being reviewed on a case-by case basis to determine whether they were merely re-submitted due to courier delivery confirmation problems or mailed to incorrect service centers. 

The shortage of H-1B visas has recurred for the last five years when the annual cap for H-1B visas was exhausted even before the start of the fiscal year.  The demand for H-1B visas has worsened over the years ever since the Congress reverted the H-1B numerical limits to 65,000 per year.

Of these, 6,800 visas are set aside for Chileans and Singaporeans under Free Trade Agreements entered into between those countries and the U.S. 20,000 visas are allocated to advanced degree holders or those with Master’s or higher degree from U.S. academic institutions.  USCIS conducted the selection process for “advanced degree” exemption petitions first and those not selected were included in the random selection process with the other H-1B applications subject to the 65,000 limit.

This further reduced the number of H-1B visas to just about 58,200 visas to be drawn by random selection among the approximately 163,000 applications filed before the deadline of April 7, 2008.          

Because of this unrealistic scenario, there is a renewed clamor for more H-1B visas to meet the severe shortage of skilled professionals.  Technology companies have publicly complained of the need for more H-1B visas for them to be able to fill the labor gaps that are not being filled in the U.S. labor market so that they can hire more highly skilled workers to remain competitive and to prevent them from offshoring vital services. 

Several proposals were made in Congress including the one by Senators Barbara Boxer of California and Judd Gregg of New Hampshire.  Their proposal seeks to allow foreigners who graduate in U.S. educational institutions to get their green cards provided they have a job offer.  This was a companion bill to the one introduced earlier by Representative Zoe Lufgren that seeks to exempt STEM (science, technology, engineering and mathematics) advanced degree graduates from the yearly limit of 140,000 for employment-based immigrant visa. 

 There was also a proposal by Congressman Anthony Wiener of New York not to lump international fashion models together with other specialty occupations to vie for the H-1B visas but to give them their own visa category since while they are considered skilled professionals, they do not require a Bachelor’s degree in their profession. 

Editor’s Note: REUBEN S. SEGURITAN has been practicing law for over 30 years. For further information, you may call him at 212 695 5281 or log on to his website at http://www.seguritan.com/