DHS Releases FY 2022 H-1B Lottery Instructions

CDF Labor Law LLP
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Last week, the United States Citizenship & Immigration Services (“USCIS”) released information regarding the upcoming federal fiscal 2022 H-1B lottery. USCIS announced that it will begin accepting registrations for the H-1B visa lottery on March 9, 2021. Employers wishing to employ an H-1B nonimmigrant should file an electronic registration through USCIS’ portal at my.uscis.gov. The registration period will close on March 25, 2021.

Selected registrants will be electronically notified by March 31, 2021, and will have 90 days to prepare and file an H-1B petition with US Citizenship & Immigration Services. If the petition is approved, the H-1 petition will be valid on October 1, 2021 and the employer will be authorized to employ the listed foreign worker for a maximum period of three years.

Additionally, USCIS announced the methodology it will use to select the winning lottery registrants. Previous H-1 lotteries utilized a random draw to select the 85,000 winning registrants. On January 7, 2021, during the waning days of the Trump Administration, USCIS published a rule changing the way winning registrants are selected. Instead of randomly selecting winners, the new regulation required USCIS to select winning registrants based on the wage offered to the worker with the visas going to the employers offering the highest wages. USCIS delayed the implementation of this new rule to allow for more time to develop and implement the wage-based lottery system.

Last week, USCIS announced that this year USCIS is conducting a random draw of H-1B lottery registrants and is not using the wage-based allocation system. Additionally, the Biden administration issued an executive order pausing rules published in the last 60 days of the Trump Administration including this one.

The net takeaway from this announcement is that this year’s H-1B lottery is going to look an awful lot like last year’s H-1B lottery: A relatively cheap electronic registration system followed by a random draw of winners.

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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