Background

The H-1B nonimmigrant visa is one of the most highly utilized and sought-after temporary work visas and facilitates the employment of foreign nationals entering the United States to perform employment in “specialty occupations.” A specialty occupation has been defined as an occupation requiring at least a Bachelor’s degree or equivalent to perform professional temporary duties in the United States. Originally introduced in The Immigration and Nationality Act of 1952, the Bush administration split the visa into two categories under The Immigration Act of 1990 – the H-1A visa for nurses and H-1B for specialty occupations. In its current form, the H-1B visa is limited to 85,000 visa petition submissions, and employment start dates for employment occur on October 1 of each government fiscal year. H-1B visa petition submissions to U.S. Citizenship and Immigration Services (USCIS) may be filed up to 180 days in advance of the commencement of employment. Traditionally, April 1 is the first day of the year that USCIS accepts H-1B filings.

The Pre-Registration Period

Prior to 2020, USCIS monitored the number of H-1B registrations it received in the first five days of April. In any year that the mandated cap of 85,000 H-1B petition submissions was exceeded, USCIS would conduct a random lottery first selecting the first 20,000 Master’s degree H-1B filings and thereafter the 65,000 Bachelor’s degree H-1B cap cases.

In January 2020, USCIS introduced an H-1B “pre-registration period” from March 1-March 20, 2020. The program was a success, and again in 2021, USCIS utilized the H-1B pre-registration process for March 2021 H-1B submissions. Receiving approximately 275,000 petitions for the treasured 85,000 spots in the first year, and over 300,000 petitions in 2021, the program is highly competitive. For this reason, preparing well in advance for the time frame for pre-registration is a must.

To date, USCIS has yet to announce the March 2022 filing time frame.

The H-1B filing pre-registration period allows employers to register their individual H-1B submissions online with one select foreign national applicant. Multiple filings by the same employer for one foreign national will result in disqualification of the submission. It is important to note that more than one employer may file an H-1B petition for one foreign national.

Exemptions from the H-1B Cap and Other Visa Options

Should the H-1B pre-registration an applicant submitted not be accepted in the H-1B filing season, there are other options. Certain foreign nationals are exempt from the H-1B filing process, including:

• NAFTA/USMCA qualifying citizens of Canada or Mexico – pursuant to the occupations listed in the USMCA Free Trade Agreement, which may be more limiting than qualifying for H-1B visa eligibility; citizen of Australia (E-3 visa), Chile or Singapore (H-1B visa);
• The spouse of an L, E, or H-1B work permit holder (in limited circumstances);
• J-1 nonimmigrant with at least 18 months of academic training available as of April 1, 2019;
• H-1B employees who have held H-1B status at any time during the last six years with an H-1B cap-subject employer, and are currently located abroad;
• Foreign nationals married to U.S. citizens who have received or are expected to receive employment authorization through a pending application for adjustment of status; or
• Other foreign nonimmigrant visa holders in O, E, L, or R visa status; and universities, not-for-profit research, or government research organizations that might be exempt from H-1B cap requirements.

Takeaway

With the H-1B cap pre-registration period quickly approaching, it would be appropriate to review your hiring needs and assure that, if you have identified employees located abroad, foreign students requiring H-1B sponsorship, and others who might wish to benefit from the H-1B visa program, they are considered for this visa option. The window of opportunity is short and the benefit – both to a U.S. employer and a talented foreign national – is great.

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