USCIS Announces H-1B Electronic Registration Process for Upcoming Cap Season and Postpones Rule Prioritizing H-1B Cap Case Selection Based on Salary

Kramer Levin Naftalis & Frankel LLP

U.S. Citizenship and Immigration Services (USCIS) announced that it will hold the H-1B electronic registration process for the fiscal year 2022 H-1B cap (from which the annual H-1B lottery will be run). Registration begins at noon Eastern Standard Time on March 9, 2021, and runs through noon Eastern Daylight Time on March 25, 2021.

In addition, the U.S. Department of Homeland Security announced it will postpone the effective date of the H-1B selection process final rule until Dec. 31, 2021. That rule would have given priority in the H-1B selection process to higher-salaried positions (see below). Accordingly, the random selection process (used last year) will remain in place.

Companies (registrants) wishing to sponsor any current or prospective employees for H-1B status will be required to electronically register through the USCIS website (www.uscis.gov) during this 17-day period. Sponsoring companies and their legal representatives each must complete registration steps through their own USCIS online account. You will be asked to provide information regarding your company and the foreign national(s) you wish to sponsor. You will also need to electronically submit a completed and signed Form G-28 for our firm to act as your lawyers. A $10 government filing fee is required for each registration. Following the registration period, USCIS will select approximately 85,000 entries from the electronic registration list and invite those petitioners to submit a full H-1B filing (including all filing fees) within 90 days of case selection.

Registrants that do not already have an account must create an account specifically designed for the H-1B cap by visiting https://myaccount.uscis.gov/users/sign_up and selecting the “I am an H-1B registrant” option. To ensure a smooth registration process, sponsoring companies are strongly encouraged to set up their registrant accounts prior to March 9, 2021, when the registration process opens.

USCIS has stated that the initial selection process will be completed by March 31, 2021. USCIS will then notify registrants as to which foreign nationals have been selected. This notification will also provide a 90-day period in which H-1B petitions for the selected individual must be prepared and filed. 

Following the lottery, the USCIS account will display one of the following statuses for each submitted registration:

  • The registrant is invited to prepare and file its petition with USCIS within 90 days.
  • This refers to the fact that the lottery entry (not the petition) was submitted and received. (The system may continue to show “submitted” even after the initial selection process.) In the event the 85,000 H-1B slots aren’t exhausted (due to petitioners not pursuing H-1B filings after selection or H-1B petition denials), USCIS may make additional selections.
  • Not selected. The system won’t show this until the end of the fiscal year and after the lottery process has concluded.
  • This occurs only when the same registrant has submitted more than one registration for the same foreign national, which is prohibited.

To be eligible for the master’s cap, an individual must earn a U.S. master’s (or more advanced) degree no later than the last (89th) day of the period allotted for the filing (due on day 90) of the H-1B petition following lottery sections.

USCIS has not indicated whether it will suspend premium processing for H-1B cap case filing, as it has done in past years.

Please review your employment needs now to determine whether you wish to sponsor any of your current or prospective employees for H-1B status. This includes those professionals already employed by you in F-1 Optional Practical Training, E-3, TN, J-1/J-2 or L-1A/L-1B status, and any individuals you may wish to bring on board as of Oct. 1, 2021.

USCIS Postpones Rule Prioritizing H-1B Cap Case Selection Based on Salary

As detailed in our Jan. 11, 2021 Client Alert (Kramer Levin H-1B Cap Client Alert), President Trump’s Department of Homeland Security published a final rule, on Jan. 7, 2021, changing USCIS’ H-1B lottery selection process. Instead of selecting cases randomly, the regulation called for USCIS to rank and select H-1B lottery entrants based on wages, selecting those with the highest wages first. 

At the end of last week, President Biden’s Department of Homeland Security announced that it will delay the effective date of this final rule from March 9, 2021, to Dec. 31, 2021. The delay will provide USCIS more time to develop, test and implement the modifications to the H-1B registration system and selection process. The delay will also provide more time for USCIS to train staff and perform public outreach as well as give stakeholders time to adjust to the new rule. As a result, this year USCIS will use the same random selection methodology it used in last year’s H-1B lottery. 

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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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