Cap Closed: USCIS Notifies Selected H-1B Cap Registrants

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[co-author: April Diodato, Paralegal]

The H-1B cap selection process has ended and the race to file petitions for selected registrants has begun.

USCIS announced that on March 30, 2021, enough electronic registrations had been received during the initial registration period to reach the cap for fiscal year 2022. Employers and representatives of registrants selected in the regular cap and master’s cap lottery have been notified of the results. For the lucky winners, April 1 marks the start of the 90-day window to file complete H-1B petitions. (USCIS notes that the period for filing will be “at least” 90 days.)

This is only the second year that USCIS has used an electronic preregistration system for cap-subject H-1Bs via myUSCIS.gov. According to USCIS, statuses have been updated for each registered beneficiary’s online account, including:

  1. Selected – Go ahead and file that H-1B cap-subject petition; don’t forget to include a printed copy of the registration selection notice along with it. Be advised that there is also a new edition of Form I-129 and starting July 1, 2021, only the 03/10/21 edition will be accepted.
  2. Submitted – These registrations remain in consideration for selection. According to USCIS: “If the initial selection process has been completed, this registration remains eligible, unless subsequently invalidated, for selection in any subsequent selections for the fiscal year for which it was submitted.”
  3. Denied – This indicates that the registrant submitted multiple registrations for a beneficiary. For denials based on duplicate registration, USCIS invalidates all registrations submitted for this beneficiary by the same registrant for FY 2022.
  4. Invalidated-Failed Payment – Your registration was successfully submitted but payment was “declined, not reconciled, or otherwise invalid,” per USCIS.

The cases that have been “submitted” and not yet selected will remain active in the USCIS system for potential future selection in July. If there are any cases that were selected in the lottery in March but for which petitions are not filed during the 90-day filing window, or if there are cases that are denied or invalidated, those numbers will go back into the pool of eligible H-1B registration numbers, and USCIS will conduct a second round of lottery selections. Last year, USCIS notified thousands of additional petitioners of their newly selected cases during the first week of July. We anticipate a similar timeframe for the second round of lottery selections this year, although USCIS has not yet announced the second selection window, and it may vary somewhat.

Last year, a surprisingly large number of additional cases were selected in July. We don’t know yet if this was caused by the pandemic or by other factors. The pandemic could feasibly have led to thousands of job offers being rescinded, and with them, H-1B sponsorship. However, it was also the first year that registering in the H-1B lottery became very cheap and easy—it only costs $10.00 to register, and very little information is required to file a registration, so it does not take a lot of time. It is possible that with such a low bar to registration and much higher bar to file an approvable petition, companies filed a lot of registrations even if they were not sure if they wanted to file the petitions. We will get a better sense, over the course of the next few years, of how many additional cap selections we can expect each July.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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