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USCIS Confirms H-1B Cap Registration and Selection Process for FY2022 USCIS Confirms H-1B Cap Registration and Selection Process for FY2022

USCIS Confirms H-1B Cap Registration and Selection Process for FY2022

Employers who have made use of the H-1B visa category are very familiar with the rush of the H-1B cap season that culminates in new H-1B petitions filings beginning in April of any given year. In addition to the flurry of activity that traditionally precedes April filings, this year has also been highlighted by proposed changes to the H-1B program and some uncertainty about if or how those changes would be implemented. United States Citizenship and Immigration Services (USCIS) has now confirmed that the proposed changes have been delayed, which means that this year’s H-1B cap process will look largely the same as it did last year.

The H-1B visa classification is widely utilized by U.S. companies to sponsor foreign professionals in a wide variety of industries and specialty occupations, and it is often the only available option for temporary employment in the U.S. However, the visa is subject to an annual limit each fiscal year, and because more petitions are usually filed than there are H-1B visas available, USCIS has historically conducted a lottery to select petitions for processing. In prior years, that lottery has been subject to a random selection process, but a new rule proposed last fall and set to take effect next month would have replaced the random lottery with a wage-based selection process to reserve the limited H-1B visas for only the highest paying positions. That rule has now been delayed until December 31 and could see additional changes. At a minimum, it will not affect this year’s H-1B cap process, and the random lottery will still apply this year.

The H-1B visa category is the most common professional visa option and is also the most highly regulated. The category is only available for “specialty occupations,” defined as requiring theoretical and practical application of a body of highly specialized knowledge and a minimum of baccalaureate level education in a specific discipline. H-1B employers also have several obligations unique to this category, including notifying its U.S. workers of the intention to file an H-1B petition, making attestations regarding the working conditions of similarly employed individuals, and paying the H-1B worker a minimum prevailing wage for the offered position. A separate Department of Labor rule was also set to take effect in March that would have substantially increased the minimum salary requirements for H-1B workers, but that rule has now also been delayed.

Therefore, despite various proposed changes to the H-1B cap season, the process should feel familiar to employers this year. Specifically, employers must register electronically with USCIS between March 9, 2021 and March 25, 2021, and random selection will be made from those registrations. Only those employers whose registration(s) are selected will then be eligible to file complete H-1B petition(s) on behalf of the prospective employee(s) with USCIS beginning April 1. Employers will have 90 days to file those petitions. 

All employers seeking to sponsor cap-subject beneficiaries and their attorneys must create online accounts in order to submit registrations. Attorneys can begin preparing H-1B registrations when the window opens and must then provide access to employers to review and approve the registrations. Attorneys may then pay the required fees and submit the registrations.

USCIS intends to notify employers/attorneys of selection through the online system no later than March 31. Cases not selected initially will remain eligible for future selection if enough H-1B petitions are not received and approved to meet the annual limit. As was the case last year, no other filing option is anticipated, so the March deadlines remain critical for any employer seeking H-1B sponsorship.

Please contact Christl Glier, Jenifer Brown, or another member of the Ice Miller Immigration Practice to discuss your H-1B sponsorship or related immigration needs.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.
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