The Luck of the Draw: H-1B Lottery Set to Open March 9-25

Orrick - Employment Law and Litigation

Earlier this month, U.S. Citizenship and Immigration Services (“USCIS”) officially announced that the H-1B electronic registration period for FY2022 will be open from March 9 through March 25, 2021. During this period, prospective petitioners and representatives will be able to submit their registrations for potential H-1B candidates.

Due to the limited number of U.S. employment visa options available to foreign nationals, the H-1B is one of the most coveted ways an individual can receive permission to temporarily work and live in the U.S. Notably, H-1Bs can be granted to foreign nationals who will work in “specialty occupation” positions in the U.S. (i.e., professional-level roles requiring at least a bachelor’s degree or equivalent in a specific field of study).

Each fiscal year, the U.S. government makes 85,000 new H-1B visas available, including 20,000 H-1Bs reserved for holders of U.S. Master’s degrees or higher. Competition is typically stiff, however, and USCIS has received more submissions than the 85,000 spots available in each of the last several years. Accordingly, H-1B candidates are typically subject to a randomized lottery conducted by USCIS, which was conducted electronically for the first time last year, wherein only a portion of submissions are selected for further adjudication. Notably, this year’s selection process was supposed to change to a wage-based preference system, but that final rule is temporarily delayed until December 31, 2021.

During the registration period, companies or their representatives can register for all H-1B candidates they seek to sponsor through their myUSCIS account. H-1B candidates can include existing U.S. employees in another immigration status, global employees who currently sit abroad, or prospective employment candidates who require U.S. work authorization to assume employment.

If USCIS receives enough registrations by March 25 (which it is expected to again), the agency will randomly select a portion of registrations for further adjudication and notify prospective petitioners and representatives by March 31. If the USCIS selects an employer’s registration in the lottery, the employer will have 90 days from notification to file its complete H-1B petition for the selected candidate(s).

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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