Get Ready For H-1B Cap Season, With Or Without Changes

Fox Rothschild LLP

Fox Rothschild LLP

Following up on its November announcement, last week USCIS issued a Final Rule to change the way cap-subject H-1B petitions are selected.

The Final Rule (which is unchanged from the proposed November Rule) would significantly alter the H-1B cap selection process by creating a tiered selection system. The tiered system would be based on the four OES (Occupational Employment Statistics) Wage Levels and would strongly favor employers who can pay the highest wage for the occupation in the area of employment.

USCIS has stated its plan to implement the Rule for this years’ H-1B Cap Season (FY2022).  It’s questionable, however, whether this will happen.  Various challenges are expected and will likely result in the Rule being enjoined or at least paused, so watch for updates.

Under the Rule, USCIS would again accept Employer electronic registrations for the H-1B cap.  In addition to the basic registration details required during last year’s registration, Employers would also include the “highest OES wage level that the proffered wage equals or exceeds for the relevant SOC [Standard Occupational Classification] code in the area of intended employment.”

If so many Employer registrations are received that a cap lottery is needed, USCIS would use the OES wage level information to rank the Employer Registrations. USCIS would select Employer registrations starting with Level IV, then proceed with Level III registrations, and so on until the Regular H-1B cap and the Advanced Degree Exemption are both exhausted.  Readers may recall that there are 65,000 spots in the Regular Cap and 20,000 in the Advanced Degree Exemption per fiscal year.

Historically, when a cap lottery was needed, USCIS conducted a random selection process.  This essentially gave all employers the same chance.  Random selection was used in last year’s lottery, but with a slight tweak. Instead of first selecting petitions against the Advanced Degree Exemption, USCIS first selected from all petitions under the Regular Cap.  This included those with US advanced degrees and thereby slightly increased their odds for selection.  Then, USCIS selected petitions to be counted against the advanced degree exemption.  This year’s change is much more substantial.

So, while USCIS intends to implement the change for this year’s cap selection, there is a chance that this may not happen.

Either way, if you’re an employer interested in sponsoring a foreign national professional level worker for H-1B status, it’s best to begin preparing now because the upfront analysis may require additional time prior to the limited Employer Registration window.  If the new selection system takes effect for this year’s cap, some Employers may face a reduced chance of being selected to petition for the workers they need.  As such, this year more than ever, it’s important to contact legal counsel to begin preparing as soon as possible.  Options for sponsorship other than H-1B status may be available.

[View source.]

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Fox Rothschild LLP

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