Tonkon Torp LLP

Fiscal Year 2022 - H-1B Lottery Registration Dates
On February 5, 2021 the U.S. Citizenship and Immigration Services (USCIS) announced H-1B Cap Registrations for the Fiscal Year 2022 (FY 2022) lottery will be accepted from March 9, 2021 (noon Eastern) through March 25, 2021 (noon Eastern). USCIS intends to notify lottery participants of selected registrations by March 31, 2021. USCIS will charge a $10 registration fee.

H-1B Lottery Registration Details
Lottery registration will require basic information about the employer, sponsored foreign national, and whether the foreign national holds a U.S. advanced degree. With the electronic registration procedure, employers will only need to prepare complete H-1B petitions for registrations selected in the lottery.

If USCIS receives enough registrations by March 25 to meet the annual quota, it will conduct a random lottery. Based on past demand and the current labor market, a lottery will likely be held for the registrations received. If selected in the electronic registration process, employers will be provided at least 90 days to file an H-1B petition. USCIS may, in its discretion, provide a longer filing window; the filing deadline will be included on the lottery selection notice issued by USCIS. We expect employers will be able to start filing H-1B petitions for registrations selected in the lottery beginning April 1, 2021.

Next Steps
We recommend that employers review upcoming hiring needs as soon as possible to determine if new H-1B petitions will need to be filed under the FY2022 quota for potential employment start dates of October 1, 2021.

In your review, we recommend considering the following:

  • Whether the company employs any foreign nationals who will need (or may benefit from) a change to H-1B status. Examples include: F-1 and J-1 students, TN NAFTA professionals, L-1B specialized knowledge transferees, E-3 Australian specialty occupation professionals, and individuals with certain types of employment authorization documents (EADs).
  • If there are any prospective candidates the company wishes to employ beginning October 1, 2021 or later who require a new H-1B petition. Example: recruiting someone outside the United States who requires an H‑1B visa to work for the company.

H-1B Cap Details
All “new” H-1B petitions are subject to an annual quota, or “cap” of 65,000 regular H-1B visas, and an additional 20,000 H-1B visas reserved for holders of advanced degrees (master’s or higher) from accredited U.S. universities. New cap H-1B petitions are generally required for individuals previously not counted against the cap (with limited exceptions). New cap H-1B petitions are not required for H-1B extensions and most H-1B changes of employer.

Wage-Based Selection for H-1B Lottery Delayed
The Department of Homeland Security (DHS) also announced that it will publish a final rule on February 8, 2021 delaying the Trump Administration’s H-1B lottery wage-based selection rule until December 31, 2021. See our news alert here explaining the wage-based selection rule. As a result, the FY 2022 H-1B lottery held this spring will be a random lottery.

DHS is delaying the wage-based selection rule because “USCIS will not have adequate time to complete system development, thoroughly test the modifications, train staff, and conduct public outreach needed to ensure an effective and orderly implementation of the rule…” DHS also confirms that it will review and assess the underlying merits of the wage-based selection rule.

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