USCIS Announces H-1B Lottery Season for FY2022

Harris Beach PLLC

On Feb. 5, 2021, USCIS announced that the H-1B cap registration process for this year will open on March 9, 2021 and close on March 25, 2021. USCIS will notify selected registrants by March 31 that they have been selected, and petitions may be filed for selected beneficiaries between April 1 and June 30. Approved petitions will have an H-1B employment start date of October 1, 2021.

The H-1B lottery registration process is now conducted online. Employers are required first to set up an account on the USCIS website. The site allows the employer to designate an attorney of record, who may then submit the lottery registration on behalf of the company. The filing fee for registrations is $10 per beneficiary.

USCIS also announced on Feb. 4, 2021 that it will delay until 12/31/21 the effective date of a Final Rule that will change the H-1B selection process. Under the now delayed Final Rule, USCIS will prioritize selection of H-1B lottery registrations for higher paid workers in such a manner that those filling entry-level roles will almost never be selected. The delay of the Final Rule means that this year’s lottery will be conducted in the same manner as last year’s lottery and in the manner required by the Immigration and Nationality Act: randomly.

Congress has set an annual cap of 65,000 H-1B cap-subject petitions that can be approved each year, plus 20,000 additional are set aside for those with Master’s degrees or higher from a U.S. college or university. Under the lottery process, USCIS first randomly selects 20,000 petitions from the “Master’s Cap.” Any petitions not selected are then returned to the pool for potential selection as part of the 65,000 additional available H-1B numbers. For several years, the odds of selection overall have been about 1 in 3, as the government has received approximately three times as many registrations as there are visa numbers available. While the government does not provide statistics on the percentage of Master’s Cap petitions selected, our own experience would indicate the odds have been closer to 1 in 2. However, this can change from year to year depending on the number of petitions submitted toward both caps.

Last year was the first year that USCIS conducted the lottery process using an online registration tool. Prior to that, companies had to prepare the entire H-1B petition and file it with USCIS, and USCIS would reject the extras, which meant mailing them back to the company or attorney of record. The new process is a much more efficient use of government resources and has the added bonus of rendering more people eligible for the cap. It remains to be seen if this will become an annual trend, but last year there were many people selected for the lottery who failed to file petitions. This may be because the jobs no longer existed due to the pandemic, or it could be because the process of registering is so easy and inexpensive that many people did it even if they were not sure they wanted to file a petition. But because of this, USCIS was able to run a second round of cap selections in July, after the filing window closed on the first round, and we had several cases selected in that round.

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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