USCIS Announces Electronic Pre-registration Dates For This Year’s H-1B Cap Submissions

Tarter Krinsky & Drogin LLP
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On Friday, February 5, 2021, U.S. Citizenship and Immigration Services (USCIS) announced the dates for this year’s H-1B pre-registration filing period.

This filing period is highly anticipated by U.S. sponsoring companies as the H-1B visa is a primary vehicle used to hire foreign workers for employment in the United States. It is routinely used by the information technology (IT) industry and is sought after by many students graduating from U.S. universities.

USCIS will accept H-1B pre-registration filings between noon eastern time on Tuesday, March 9, 2021, through Thursday, March 25, 2021, at noon eastern time. The pre-registration filing must be accompanied by a filing fee of $10.00. For each H-1B submission, petitioners, known as ‘registrants,’ will be able to add beneficiary applicants during the filing period.

Important Dates to Know for This Year’s H-1B Cap Submissions
-March 9, 2021 – H-1B registration process opens – Noon, Eastern Time
-March 25, 2021 – H-1B registration process closes – Noon, Eastern Time
-March 31, 2021 – H-1B registrants notified by USCIS that they have been selected in this year’s H-1B cap filings
-April 1, 2021 – Earliest date that the fiscal year 2022 H-1B cap-subject petitions may be filed

H-1B Processing
The pre-registration process was used for the first time in March 2020, and USCIS viewed it as a success. It avoided the need to return rejected petitions not accepted in the H-1B lottery selection.

USCIS has announced that if it receives enough pre-registrations by March 25, 2021, it will randomly select registrations and notify select applicants by March 31, 2021. The agency will then set a period for filing H-1B petitions with its Remote Adjudication Centers. Last year the initial filing period ran from April 1, 2020, through June 30, 2020. Due to COVID-19 and the unexpected economic downturn, USCIS did not receive sufficient filings during this 90-day period and opened a second filing in the August to November time frame.

Computer Programmer Designation Reinstated And Wage Level Policy Memo On The Back Burner (For Now)
In addition to this news, USCIS announced that it was reinstating its pre-2017 policy, confirming that ‘computer programmer’ shall once again be considered a ‘specialty’ occupation, thus qualifying for H-1B designation. This policy memo further instructs USCIS to apply its pre-2017 policy to any pending or new H-1B petitions, including motions on or appeals of revocations and denials of H-1B classification. Further guidance in this regard is expected.

The reinstatement of pre-2017 USCIS policy regarding considering computer programmers to be eligible for designation as individuals performing services in a ‘specialty occupation’ should reopen the capacity for U.S. companies to hire IT professionals. It is expected that guidance will be forthcoming in view of the U.S. Court of Appeals’ decision for the Ninth Circuit, which issued a decision in Innova Solutions v. Baran No 19-16849 (9th Cir. 2020). In that decision, the court overturned the USCIS denial as arbitrary and capricious. The policy guidance upon which USCIS might have relied for its contention that computer programmers did not qualify as those performing specialty occupations is to be rescinded immediately.

USCIS also announced that it would review and reconsider the regulations introduced by the prior administration concerning increasing wage levels for the H-1B and Program Electronic Review Management (PERM) applications for alien labor certification.

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