USCIS Gears up for the H-1B FY22 Cap Cycle



Executive Summary: USCIS has announced the timeline for the H-1B FY22 Cap Petition Cycle. Similar to last year, USCIS will require H-1B sponsor employers to register H-1B candidates online starting March 9, 2021. USCIS will then conduct a lottery to select the registrations and will notify companies about selected registrations by March 31, 2021. Companies can file H-1B petitions for selected registrations starting April 1, 2021 until at least June 30, 2021.

Background: The H-1B visa classification is designed for foreign workers who will fill professional occupations that require at least a bachelor's degree or equivalent. There is an annual limit of 65,000 H-1B visa numbers available each year, with an additional 20,000 reserved only for those holding U.S. master's degrees. We fully expect that USCIS will receive sufficient electronic registrations in March to fill all of the H-1B petitions for the year. Petitions that are accepted and approved will have a beginning validity date of October 1, 2021, or later.

What is the timeline for the H-1B FY22 Petition Cycle?

March 9: H-1B registration period opens at noon ET.

March 25: H-1B registration period closes at noon ET.

March 31: Date by which USCIS intends to notify selected registrants.

April 1: This is the earliest date that FY 2022 H-1B cap-subject petitions may be filed. USCIS will provide a minimum of 90 days to file H-1B petitions, or until at least June 30, 2021.

June 30: This is the earliest possible end date of the H-1B FY22 petition filing period, but USCIS can extend the filing period beyond that.

Who Needs an H-1B Visa?

We urge employers to consider H-1B sponsorship for any current or future employees who are present in the U.S. under the following categories:

  • F-1 student visas;
  • J-1 exchange visitor visas;
  • TN visas for Canadian and Mexicans professionals;
  • L-1A/L-1B visas for managerial and specialized knowledge workers;
  • E-3 visas for Australian professionals;
  • L-2 or H-4 dependent visas; and
  • E-1 or E-2 treaty visas.

Prospective professional employees who are residing overseas require visa sponsorship in order to work for a U.S. company. In many cases, the H-1B visa is the best vehicle to achieve this.

What to Expect for the 2021 (Fiscal Year 2022) H-1B Filing Season

USCIS will run the registration period from March 9 through March 25, 2021, for the FY 2022 H-1B numerical allocations.

  • Employers and their representatives will be able to set up required myUSCIS “Registrant” accounts prior to March 9, 2021, but USCIS has not yet enabled that feature online or announced when it will activate it. Employers should not set up myUSCIS accounts until USCIS specifically activates the “Registrant” account type. Employers who incorrectly set up their account type will be blocked from establishing the correct type of account later, so it is critical to follow the instructions provided by your legal counsel about this technical process. Finally, if an employer properly set up a myUSCIS account during the 2020 H-1B cap petition cycle, it should be able to re-use that account to file new H-1B registrations this cap season.
  • Employers who wish to sponsor cap-subject H-1B petitions will need to register each worker and pay a $10 registration fee per registration.
  • Duplicate registrations from the same employer for the same sponsored worker are prohibited. However, an employer can register an unlimited number of prospective H-1B workers, provided there are enough legitimate open positions. In addition, an H-1B worker may have more than one sponsoring employer submit a registration on his behalf provided that each company has a bona fide job opportunity for that worker.
  • Presuming that enough registrations are received, after March 25, 2021 USCIS will carry out a lottery to select enough registrations to reach the FY 2022 H-1B numerical allocations.
  • USCIS will notify registrants with selected registrations no later than March 31, 2021.
  • Only those prospective employers whose registrations are selected will be eligible to file a FY 2022 cap-subject petition, and the petition may only be filed for the foreign national named in the registration. Employers cannot substitute workers.
  • USCIS will accept H-1B petitions for the selected registrations for a minimum 90-day filing period starting April 1, 2021 until at least June 30, 2021.

What Information is Required for the Online Electronic Registration?

USCIS will only require basic information for the registration such as full legal name; gender; date of birth; country of birth; country of citizenship; passport number, if any; and whether the beneficiary has a U.S. master’s degree from a qualifying educational institution at the time an H-1B cap petition is filed on the beneficiary’s behalf. Still, employers and their counsel should vet the viability of each case in advance of submitting a registration.

When Should I Start the H-1B Process?

Employers who would like to sponsor a worker for an H-1B petition should begin working with an experienced business immigration attorney well in advance of March 9, when the registration period starts. For 2021, we anticipate strong demand for H-1B visas and expect the number of electronic registrations to vastly exceed the annual allocation.

Employers' Bottom Line: The registration period for the H-1B FY22 sponsorship cycle will run from March 9, 2021 until March 25, 2021. Given the high demand for H-1B visas, this may be the only opportunity to register prospective H-1B workers this year. USCIS will conduct a lottery to select registrations and will notify selected registrants by March 31, 2021. If selected, sponsoring companies will have at least a 90-day period to file H-1B petitions on behalf of the selected registrants starting on April 1, 2021. We recommend that companies start working with counsel right away to assess the eligibility of any anticipated cases and complete the information/document intake process. As USCIS announces additional details related to the FY22 registration and filing periods, we will update this Alert.

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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