What you need to know about this year’s H-1B cap process

Last year, the U.S. Citizenship and Immigration Services rolled out for the first time a new electronic registration tool for H-1B cap cases as part of its implementation of regulations issued in January 2019. The 2019 regulations required employers to register electronically before submitting cap-subject H-1B petitions. The regulations also reversed the order by which the USCIS selected petitions under the H-1B cap, making it easier for candidates to be selected if they had advanced degrees from U.S. institutions.

On February 5, the USCIS announced that this year’s H-1B cap registration process will be the same as the process used last year. This year’s registrations will be for periods of employment that begin October 1, 2021, which is the first day of the federal government’s Fiscal Year 2022. Registration for FY22 will be open from March 9 through March 26, 2021. Employers or their legal representatives may create their online accounts now.

The online registration form will request basic information about the prospective H-1B employer and employee. The basic form is identical to last year’s form, and will ask for the following information:

• The employer’s name, Federal Employer Identification Number, and primary office address

• The name, job title, daytime phone, and email address of the employer’s authorized representative

• The beneficiary’s full name, date of birth, country of birth, country of citizenship, gender and passport number

• Whether the beneficiary has earned a master’s or higher degree from a U.S. institution, and if so, the degree and institution.

Employers will file a separate registration for each proposed H-1B worker at a fee of $10 per registration.

If the number of registrations exceeds the annual cap of 85,000 visas, the USCIS will make random selections, but only from among the candidates who have been registered. If there are not enough registrations, the USCIS may continue accepting submitted registrations, or open a new registration period.

If a registration is accepted by the USCIS, the employer will have 90 days from notification to file its actual petition.

In calendar year 2020, as a result of the COVID-19 pandemic and economic uncertainty in a variety of industries, many employers did not file H-1B petitions for selected registrants. This prompted the USCIS to reopen the lottery for registrants who were not selected in the initial lottery.

Biden delays wage-based selection regulations

As we reported last month, the outgoing Trump Administration published regulations that aimed to prioritize higher-wage earners for H-1B visas. The regulations were scheduled to take effect on March 9.

However, the Department of Homeland Security under President Biden has published a “Modification of Registration Requirement for Petitioners Seeking to File Cap-Subject H-1B Petitions,” which delays the effective date of the regulations until December 31, 2021. The delay is good news for many employers because it provides an opportunity for less-highly-compensated specialty occupation workers to have a chance at the H-1B cap lottery this year.

Planning for the FY22 cap

It is imperative for employers seeking H-1B employees in FY22 to plan ahead so that they can get their registrations filed accurately and on time. We recommend the following:

• Identify H-1B candidates. Typically, these may include

• Employees working in F-1 student status with an employment authorization document (STEM or non-STEM), or derivative H-4 spouse  with employment  authorization document

• TN NAFTA or E-3 Australian national professional workers who may want to pursue permanent residence in the United States

• L-1B multinational professional level specialized knowledge employees.

• Review and finalize job offers, descriptions and salaries. It is important to make sure that job descriptions are detailed and show a direct connection between the candidate’s educational level and the offered job duties. With respect to salary, we recommend offering more than the Level 1 prevailing wage if possible.

• Gather the relevant documents needed to prepare the H-1B petition.

• Remember when the caps and the registration window do not apply. Colleges and universities, nonprofit research organizations, and other related entities are exempt from the H-1B cap. Also exempt are H-1B extension petitions and H-1B “change of employer” petitions for foreign nationals who have already been counted against the cap.

Background on H-1B program

The H-1B program allows U.S. companies to temporarily employ foreign workers in professional occupations typically requiring a minimum of bachelor’s degree or higher, or its equivalent. Congress has a mandated cap of 65,000 H-1B visas (commonly known as the “regular cap”) and an additional 20,000 H-1B visas for beneficiaries who have earned a U.S. master’s degree or higher (commonly known as the “advanced degree cap”). For nearly a decade, the USCIS has received more H-1B petitions than it can accept for processing, which results in a computer-generated random selection process (the “H-1B Lottery”).

Call us!

We strongly recommend that you contact us no later than March 1 so that we can assist you with the H-1B registration process.

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