On February 5, 2021, the U.S. Citizenship & Immigration Services (“USCIS”) announced that the H-1B Registration process for the 2022 Fiscal Year will begin on March 9, 2021, and end on March 25, 2021. USCIS intends to notify selected registrants by March 31, 2021, and petitioners may begin filing FY2022 cap-subject petitions on April 1, 2021.
The H-1B Registration Process
H-1Bs are available for occupations that require a bachelor’s or higher degree in a specific field. A total of 85,000 “new” H-1B slots are available each year. Demand for H-1Bs far exceeds this number, creating a need for an “H-1B lottery.” The H-1B lottery season changed significantly last year when USCIS implemented a new pre-registration process for filing H-1B cap-subject petitions.
Under this process, for each individual for whom an employer wishes to file a cap-subject H-1B, the employer must first submit an electronic registration with basic information about the employer and beneficiary and pay an associated $10 fee. If the registration is selected, the employer then has at least 90 days to file a fully prepared H-1B petition for the corresponding beneficiary. If the registration is not selected, it is placed on a waitlist in case more petitions can be filed at a later date. (In previous years, fully prepared cap-subject H-1B petitions were filed during the first five business days of April, then USCIS ran a random lottery based on the petitions received during that time period, but employers would not know if their petition was selected until weeks―or sometimes months―later.)
Wage-Based Selection Delayed!
Related to the upcoming registration period, on February 4, 2021, USCIS also announced it will continue to use a random selection process for this year’s H-1B lottery and delayed the effective date of the final rule published January 8, 2021, which was set to replace the random selection with a new system that would give preference to higher wage levels (much to the relief of recent and soon-to-be college graduates -phew!).
USCIS conceded that it did not have adequate time to develop and implement a wage-based selection system. The delay in effective date provides the Department of Homeland Security (“DHS”) time to evaluate the wage-based selection rule and its associated policies.
What Should Employers Do Now?
In advance of the registration period, employers should schedule a call with an immigration attorney to discuss prospective H-1B petitions to determine whether your employee or prospective employee would qualify for an H-1B.
Kristin A. Crone