H-1B Cap Registration and Process; Form I-944 No Longer Required

Faegre Drinker Biddle & Reath LLP

The FY2022 H-1B cap season is now underway. U.S. Citizenship and Immigration Services (USCIS) adopted the same H-1B registration process as was used last year. Before filing a cap-subject H-1B petition, USCIS requires that employers or their authorized representatives first complete an online registration for each cap-subject H-1B petition. USCIS will then run the H-1B cap lottery (if needed) based on these registrations. Employers would only file petitions based on selected registrations.

Below are the dates to keep in mind for this year’s H-1B cap:

  • March 9, 2021: H-1B registration period opens at noon ET.
  • March 25, 2021: H-1B registration period closes at noon ET.
  • March 31, 2021: Date by which USCIS intends to notify selected registrants.
  • April 1–June 30: Dates that selected H-1B petitions may be filed.

With the March 25 deadline fast approaching, employers with new H-1B registrations should contact immigration counsel as soon as possible to evaluate whether a case may be submitted. As reported in our earlier legal update, it is anticipated that, as in prior years, the H-1B cap will be met once the registration system opens, and the H-1B cap selection process or lottery will again be conducted.

Public Charge Rule and Form I-944

On March 9, 2021, the Department of Homeland Security (DHS) announced that it would no longer defend the Trump administration’s 2019 Public Charge Final Rule. As a result, DHS withdrew from all legal challenges to the rule, allowing a district court’s vacatur of the rule to take full effect. The Public Charge Final Rule had been the subject of ongoing litigation over the past year.

Following this change, on March 10, 2021, USCIS announced that applicants should not provide information or evidence related to the Public Charge Final Rule. The Form I-944, Declaration of Self Sufficiency, is no longer required. For applications already submitted, USCIS will not consider any information from the I-944. Applicants do not need to respond to Requests for Evidence due after March 9, 2021, on issues relating to information required under the Public Charge Final Rule. USCIS will continue to apply the public charge inadmissibility statute, including consideration of the statutory minimum factors in the totality of the circumstances, in accordance with the 1999 Interim Field Guidance, which was in place before the Public Charge Final Rule was implemented.

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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