The H-1B program allows companies in the United States to temporarily employ foreign workers in occupations that require the theoretical and practical application of a body of highly specialized knowledge and a bachelor’s degree or higher in the specific specialty, or its equivalent. Generally, any position which requires a bachelor’s degree or higher in a specific specialty may qualify as an H-1B specialty occupation, but high-demand fields for the competitive visas include science, engineering and information technology. There is an annual limitation of 65,000 visas, which are renewable for up to six (6) years (or longer in certain circumstances). An additional 20,000 visas are set aside exclusively for beneficiaries who hold a U.S. master’s or doctoral degree. These petitions are generally subject to a random lottery due to demand outpacing numerical limitations and compete for employment start dates of October 1st. In Fiscal Year 2021, U.S. Citizenship and Immigration Services (USCIS) received nearly 275,000 registrations between March 1st and March 20th. This was a 37% increase over the FY 2020 filing season.
Last year USCIS implemented a new electronic registration process. USCIS now requires employers to create an account on https://my.uscis.gov/ (the MyUSCIS portal) to register for their prospective H-1B beneficiaries. To do so, employers will need to choose a signatory to create a MyUSCIS portal account.
For Fiscal Year 2021, registration was open from March 1st through March 20th at noon EDT. For this year (Fiscal Year 2022), USCIS has just announced that the registration period will be slightly later and slightly shorter than last year. This year, the registration period will be from March 9, 2021 at noon EDT, through March 25, 2021 at noon EDT.
After the close of the registration period, USCIS will conduct its initial selection process. Notice will be sent to selected registrants through the MyUSCIS portal. Selected beneficiaries will show as “Selected” in the MyUSCIS portal, while all other beneficiaries are expected to show as “Submitted.” As was the case last year, April 1, 2021 will be the earliest date on which H-1B Cap petitions may be filed. Petitioners and their representatives must file for the selected registrants within 90 days of receiving notification of selection under the lottery. As was the case last year, we expect there may be a second round of selections in late summer/early fall of this year, allowing additional registrants to apply.
What to Keep in Mind
H-1B Wage Prioritization Rule: On January 8, 2021, DHS published a final rule, effective March 9, 2021, that would give priority in the H-1B electronic selection process to foreign nationals whose offered salary falls in the highest wage level for their occupation and geographic area. On February 4, 2021, DHS announced that it has delayed the implementation of this rule to December 31, 2021 and it will therefore not apply to this year’s cap season.
Cap-Gap: Historically, F-1 students whose Optional Practical Training (OPT) expired prior to October 1st, and who were not eligible for or chose not to pursue an extension of their OPT based on a degree in a science, technology, engineering or mathematics (STEM) field, have been eligible for an interim period of employment authorization referred to as “Cap-Gap” if a cap-subject H-1B petition requesting a change of status was filed on the student’s behalf and selected for processing.
Under the electronic registration system, F-1 nonimmigrants not chosen in the initial registration period in most cases will not qualify for Cap-Gap because their OPT Employment Authorization Document (EAD) will have expired by the time of the second round selections. This means these nonimmigrants will need to stop working and depart the United States prior to the expiration of their nonimmigrant status. Further, selected applicants must file their cap-subject petitions prior to the expiration of the work authorization to qualify for Cap-Gap.
What to Do Now
It is advisable, due both to high demand and uncertainty regarding recently published H-1B rules, that employers prepare early and thoroughly to minimize the effects of any last-minute changes to either the process or relevant H-1B regulations. Employers are also encouraged to discuss alternative options to the H-1B visa with counsel early.
Please contact our office as soon as possible to see if we can assist with any H-1B Fiscal Year 2022 Petitions. For more information regarding the Fiscal Year 2022 H-1B Cap, please reach out to one of our Immigration Co-Chairs, Manuela M. Morais or Jeffrey M. Zimskind.
This News Alert has been prepared for informational purposes only and should not be construed as, and does not constitute, legal advice on any specific matter. For more information, please see the disclaimer.