Fox Rothschild LLP

USCIS just announced that it will be publishing a notice in the Federal Register to delay implementation of changes to the H-1B Selection Final Rule until December 31, 2021.  If published as preliminarily announced, this will mean that the new H-1B Cap Selection process will not affect the upcoming FY2022 H-1B Cap Employer Registration selection process.  In other words, random selection will continue for any registration period that takes place before December 31, 2021.

According to today’s USCIS announcement, delayed implementation will “give USCIS more time to develop, test, and implement the modifications to the H-1B registration system and selection process. …  [and] provide more time for USCIS to train staff and perform public outreach as well as give stakeholders time to adjust to the new rule.”

By way of background, the agency published a Final Rule on January 8, 2021 to significantly change the H-1B random selection process that had been used for decades.  Under the Final Rule, preference in the H-1B Registration Selection process would be given to U.S. employers that can and will pay the highest wage to the H-1B worker (for the occupation and in the geographic area of employment).

Without the delayed implementation of the Final Rule, the new H-1B selection process would have taken effect on March 9, 2021.  This timing created many questions as to whether the new process would impact the March 2021 registration and selection process for cap-subject H-1B employers.

USCIS’s announcement is expected to appear in the Federal Register on Monday, February 8, 2021.

*Note that H-1B status is an employer-sponsored status for professional level workers.

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