H-1B Cap Season Is Imminent - What You Should Know This Year

Tarter Krinsky & Drogin LLP
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With the new Biden administration at the helm, we note that the H-1B final midnight regulations promulgated Friday, January 15, 2021, by the former administration have been rescinded. Those regulations, which set up a priority system based on higher wages levels according to the U.S. Department of Labor OES (Occupational Employment Statistics) guidelines will not take effect and we await further guidance in this area. The Final Rule regarding the selection process, entitled “Modification of Registration Requirement for Petitioners Seeking To File Cap-Subject H-1B Petitions,” which was to take effect on March 9, 2021, has been withdrawn.

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 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– the H-1A visa for nurses and H-1B for specialty occupations under The Immigration Act of 1990. 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 H-1B filings are accepted by USCIS.

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.

Last year, for the first time, USCIS introduced an H-1B “pre-registration period” from March 1 - 20, 2020. Receiving approximately 275,000 petitions for the treasured 85,000 spots, random filing selections were made initially with master’s degree cases made a priority in the initial filing period from April 1-June 30. Due to the COVID-19 pandemic and the high unemployment rate that ensued, a dearth of filings led USCIS to open the H-1B cap once again for those not selected in the initial filing period and selected applicants to submit H-1B petitions from August 14 to November 16, 2020.

Since USCIS viewed the H-1B cap pre-registration period a success, it is likely that it will once again use this method for the upcoming H-1B visa cap filing period. USCIS estimated it saved approximately a million dollars in postal service fees to return rejected H-1B petitions with uncashed filing fees to U.S. petitioners.

The H-1B filing pre-registration period will allow 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;
  • other foreign nonimmigrant visa holders in O, E, L or R visa status; and
    universities, not for profit research or government research organizations which might be exempt from H-1B cap requirements.
Conclusion

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, that they be 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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