News

Published 2.08.2021

On February 5, 2021, the U.S. Citizenship and Immigration Services (USCIS) announced the timeframe and parameters for the H-1B registration period.  This is the second year of the H-1B registration system.

What is the H-1B registration period?

The registration window for FY2022 will be from March 9, 2021 at 12:00 p.m. ET (11:00 a.m. CT), until same time on March 25, 2021. 

Employers seeking to petition for cap-subject H-1B status for skilled workers must submit their registration during this timeframe, or their petitions will not be considered.  Employers must register for each and every foreign worker they wish to sponsor and must name each individual worker, although all registrations may be done in one session.

How will registrations be selected?

If USCIS receives more registrations than the available number of visas, which is expected, at the end of the registration period the agency will randomly select registrations for further processing.  Employers may file the actual H-1B petition only for those registrations that are selected by USCIS in the random selection process.  USCIS intends to notify those selected by March 31, 2021, with further instructions on the timeframe to submit the actual H-1B petition for consideration on the merits. 

Employers/employees not selected in the H-1B lottery will not be eligible to submit petitions for consideration on the merits for the upcoming fiscal year, unless they otherwise qualify for a cap-exempt H-1B.

Will selection be made based on wage?

No, not for this fiscal year.  The Trump administration attempted to implement a rule to eliminate the random lottery selection and instead replace it with a wage-based selection, with the highest-paid positions being given priority.  This rule was finalized and approved during the last couple of weeks of the Trump administration, despite severe criticism and data showing that it would disenfranchise countless employers and recent college graduates from the program.

As a result, the Biden administration announced that it would temporarily delay implementation of the wage-based selection process until December 31, 2021, in order to have an opportunity to properly analyze and assess the impact it would have on its stakeholders, as well as properly adjust the registration system to accommodate such a selection process.

Is H-1B right for you?

H1-B is a non-immigrant visa classification used for individuals who seek employment in the U.S. in a specialty occupation or as a fashion model of distinguished merit and ability. To qualify as a specialty occupation, the intended job must require at least a bachelor’s degree or its equivalent, along with the theoretical and practical application of a body of specialized knowledge. Examples of specialty occupations include jobs in IT and computer science, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting law, theology, and the arts, among others.

In addition, an employer cannot use H-1B workers in a way that would negatively affect the wage or working conditions of U.S. workers employed in the same or a similar occupation. Therefore, an employer must pay the H-1B worker a wage that is at least equal to the prevailing wage rate established for that type of occupation in the applicable geographical area.

Timing of the H-1B petition.

Under current law, there are 65,000 H-1B visas available each year to individuals holding a bachelor degree or equivalent. An additional 20,000 H-1B visas are available to individuals who obtained a Master or Ph.D. degree from a U.S. university.

In recent years, USCIS reached the H-1B cap within the first week after the filing period started each April, consistently receiving between 200,000 and 250,000 petitions each year. Consequently, USCIS subjects the petitions it receives to a random, computer-generated selection process equivalent to a lottery. It is anticipated that this year will see the same trend.

Not all H-1B petitions are subject to the numerical cap.

Individuals who already have H-1B status and who are seeking to extend or amend their existing status, or transfer to a new employer, are not counted against the cap unless they have already spent six years in H-1B status. In addition, H-1B petitions filed by an employer that is an institution of higher education, a nonprofit entity related or affiliated with an institution of higher education, a nonprofit research organization or government research organization, among others, are also generally not counted against the cap.

If you are seeking H-1B clarification for the upcoming fiscal year, or if you have any other immigration-related question, contact Attorney Raluca (Luca) Vais-Ottosen at rvo@dewittllp.com or (608) 252-9291.