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Preparing for the H-1B FY2022 Cap Season

2021-02-18
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The H-1B season is once again upon us. Employers who have made use of the H-1B visa category are quite familiar with the rush of the H-1B cap season that culminates in new H-1B petitions filings starting in April of any given year. In addition to the flurry of activity that usually precedes April filings, this year has also been highlighted by proposed changes to the H-1B program and the uncertainty around how those changes would be implemented.  This implies that employers and their lawyers must schedule full submissions starting as early as February through to the end of March to ensure that all petitions are submitted as soon as the cap opens on April 1. 

Lottery Registration System Implemented in 2020

In 2020, an electronic registration process for FY 2021 was introduced by the USCIS. Until filing, petitioners and their lawyers will first need to register online and pay $10 in processing fees per beneficiary. Prospective employers are only expected to present completed H-1B cap-subject petitions once petitions are selected for filing. By reducing the paperwork, this process simplified the processing and saved countless hours of work, bringing together applications that would otherwise have been rejected if not included in the lottery.  

Proposed Changes from the Previous Administration

 

H-1b Registration

The USCIS had published a final rule on January 7th, 2021, to change this year's H-1B limit selection procedure. To protect the economic interest of U.S. employees, the new regulation recommended amending existing lottery practices and prioritizing salaries. In order to increase the chances of selection, the new regulation would allow employers to offer higher wages and greater qualified positions. Therefore, the new rule would give priority to registrations with an offered salary at the highest Department of Labor (DOL) Occupational Employment Statistic wage level instead of a random selection procedure.

With Level IV being the highest level, the DOL wage data is split into four categories. If USCIS received more petitions than the allotted quota of 85,000, the new regulation would prioritize all Level IV wage positions. Essentially, this will make it difficult to participate in the H-1B lottery for all lower wage level I and II positions. This proposed provision also would prohibit employers from amending the H-1B petition subsequently to request a lower wage.

The USCIS said it would prioritize salaries to protect the economic interests of American employees and help ensure that the temporary jobs program supports the most highly qualified foreign workers.

 

Prevailing wages

The Department of Labor released a rule on rising prevailing wages for H-1B and other immigrant jobs back on October 8th, 2020. The rule to raise salaries, however, was barred on December 1st, 2020 by federal courts for procedural defects.

Another interim final regulation, Improving Wage Security for the Temporary and Permanent Employment of Some Foreigners in the United States, was released by DOL on January 14, 2021, to raise the prevailing wages. The rule on Current wage levels is set to be implemented on June 30, 2021. Many employers have raised concerns about the drastic rise in salaries that will alter the employer's willingness to hire H-1B employees.

Reversal by the Current Biden Administration

On his first day in office, President Biden's administration released a memorandum freezing all the regulations introduced by the previous administration that have not yet been implemented for a period of 60 days. In addition, the White House withdrew the law redefining the relationship between employer and employee for H-1B purposes, which made it impossible for staffing agencies to hire H-1B employees.

In a statement earlier this month, the USCIS said that it is delaying the effective date of the H-1b Registration regulation until December 31, 2021. "DHS is delaying the effective date of this final rule that had aimed at changing this year's H-1B limit selection procedure, from March 9th, 2021, to December 31st, 2021, to give USCIS more time to develop, test, and implement the modifications to the H-1B registration system and selection process," it said.

This is because by the time the initial registration period will be open for the upcoming fiscal year (FY) 2022 H-1B cap season, the USCIS said, it will not have sufficient time to complete system development, thoroughly test the modifications, train staff and conduct public outreach required to ensure an efficient and orderly implementation of the H1B Selection Final Rule.

The delay would also allow the USCIS more time to train workers and carry out public outreach and give stakeholders time to adapt to the new law. The USCIS will extend the current regulations (random selection) to any registration period that takes place before December 31st, 2021, the statement said, in reference to the upcoming H-1B limit season.

FY2022 H-1B Lottery Process

The USCIS announced that the initial registration period for the fiscal year (FY) 2022 H-1B cap will open at noon Eastern on March 9 and run through noon Eastern on March 25. During this period, prospective petitioners and representatives will be able to fill out petitioner and beneficiary information and submit their registrations.

A confirmation number will be assigned to each registration submitted for the FY 2022 H-1B cap. This number is used solely to track registrations; you cannot use this number to track your case status in Case Status Online.

Prospective H-1B cap-subject petitioners or their attorneys are required to use a myUSCIS online account to register each beneficiary electronically for the selection process and pay the associated $10 H-1B registration fee for each registration submitted on behalf of each beneficiary. Prospective petitioners submitting their own registrations (U.S. employers and U.S. agents, collectively known as “registrants”) will use a “registrant” account that will be available soon. Representatives may add clients to their accounts at any time, but both representatives and registrants must wait until March 9 to enter beneficiary information and submit the $10 fee. Prospective petitioners or their representatives will be able to submit registrations for multiple beneficiaries in a single online session. Through the account, they will be able to prepare, edit, and store draft registrations prior to final payment and submission of each registration.

If USCIS receives enough registrations by March 25, USCIS will randomly select registrations and send selection notifications via users’ myUSCIS online accounts. USCIS intends to notify account holders by March 31.

An H-1B cap-subject petition may only be filed by a petitioner whose registration for that beneficiary was selected in the H-1B registration process.

Step by Step Registration Procedure

Step 1: Go to  https://my.uscis.gov/

Step 2: Go to Sign Up.

Step 3: Give Email Address -Email Confirmation -Click Sign Up.

Step 4: Create Password -Password Confirmation.

Step 5: Two-Step Verification Method -Select appropriate mode out of Authentication APP / SMS Text Message / Email.

Step 6: Provide Password Reset Answers à Select questions and answers (Please remember the answers)

Step 7: IMPORTANT NOTE:  SELECT – I AM AN H-1B REGISTRANT.

Step 8: You will get two boxes – “YOU SHOULD NOT START A REGISTRATION if you not are using an attorney.

SELECT SECOND BOX: WHICH IS “RECEIVED A PASSCODE FROM YOUR ATTORNEY OR REPRESENTATIVE”   

Step 9: Review/Accept G-28

 Step 10: I Accept the H-1B Registration- Click Next  

Step 11: I Authorize box has to be checked

Step 12: Sign

Step 13: Finish and Send

Information needed for H-1b registration

Legal Name of the H1B applicant – First, Middle and Family Name

Gender of the applicant

Option to select, if the applicant is eligible for US Masters H1B Quota

Date of Birth

Country of Birth

Country of Citizenship

Passport Number (  There is option to check, if there is no passport number too )

Company information needed

Legal Name of the company

Doing Business As details

Employer identification Number / SSN or ITIN

Primary US Address office of the company

Points to remember

If you already have an account, please login and check if it is active.

H1B CAP Petitioner has to create their account before the attorney enters the registration information.

Select “I am an H-1B registrant”.

 

Cap-Exempt

There is a significant exception to the cap on H-1Bs. Higher education agencies, non-profit organizations affiliated with an institution of higher education, and non-profit academic or government organizations are all "cap-exempt" and may at any time file petitions with respect to H-1B. The H-1B annual quota restricts all other employers.

Remember, only cap-subject H-1B petitions apply to the H-1B lottery. The H-1B lottery does not apply to existing H-1B employees who extend or adjust their visas or change employers (unless the current H -1B worker is working for a cap-exempt employer). The lottery would also not apply to a foreign national working for a cap-exempt employer (a government research organization, an institution of higher education, a related or affiliated non-profit entity or a non-profit research organization).

The Big Picture

For employers, this rule enforcement delay is good news. They can now go forward with courage, knowing that the H-1B lottery this year will run in the same manner as last year. The 2021 registration instructions can be accessed on the USCIS site. 

Key Dates

March 9th – online registration begins at noon (ET)
March 25th – online registration ends at noon (ET)
March 31st – The date by which USCIS plans to notify successful applicants.
April 01 – The first day selected registrants can begin to file their actual H-1B petitions.

 

With many looming uncertainties, we encourage employers to start the H-1B process early this year and get in touch with an experienced immigration attorney.  Here at the Law Offices of Prashanthi Reddy, our team of experienced attorneys have dealt with numerous H-1Bs over the years. It is important not to skip the pre-registration period from 1 March to 25th  March 2021, as the next series of cap-subject H-1B visas will not be eligible until 2022. To guide you through the upcoming H-1B cap season and respond to any questions you may have, please contact one of our qualified immigration attorneys. Moreover, we will continue to monitor announcements and updates related to the H-1B FY2022 electronic registration process and will publish updates accordingly.

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