On July 29, 2021, USCIS announced that it ran a second H-1B lottery on 2021 (FY 2022) registrations. Attorney accounts were locked for several hours but we are now able to access accounts and will be notifying clients of additional selections and next steps for filing. Thank you for your patience!
H-1B "cap" reached for FY 2022
U.S. Citizenship and Immigration Services (USCIS) announced on March 30, 2021 that it has received a sufficient number of H-1B petitions to reach the statutory H-1B visa “cap” for fiscal year (FY) 2022.
The USCIS announcement states:
We randomly selected from among the registrations properly submitted to reach the cap. We have notified all prospective petitioners with selected registrations that they are eligible to file an H-1B cap-subject petition for the beneficiary named in the applicable selected registration.
Registrants’ online accounts will now show one of the following statuses for each registration (that is, for each beneficiary registered):
Submitted: The registration has been submitted and is eligible for selection. If the initial selection process has been completed, this registration remains eligible, unless subsequently invalidated, for selection in any subsequent selections for the fiscal year for which it was submitted.
Selected: Selected to file an H-1B cap petition.
Denied: Multiple registrations were submitted by or on behalf of the same registrant for the same beneficiary. If denied as a duplicate registration, all registrations submitted by or on behalf of the same registrant for this beneficiary for the fiscal year are invalid.
Invalidated-Failed Payment: A registration was submitted but the payment method was declined, not reconciled, or otherwise invalid.
…
H-1B cap-subject petitions for FY 2022, including those petitions eligible for the advanced degree exemption, may be filed with USCIS beginning April 1, 2021, if based on a valid, selected registration.
Only petitioners with selected registrations may file H-1B cap-subject petitions for FY 2022, and only for the beneficiary named in the applicable selected registration notice.
In the 2020 (FY 2021) season, a second selection process took place in August to make unused H-1B visas available. USCIS has not yet announced when such a second selection might take place in 2021 (FY 2022).
© Jewell Stewart & Pratt PC 2021
H-1B "cap" for 2021 (FY 2022) will be a Random Lottery, as in Prior Years
Last updated: 02/05/2021
On February 4, 2021, USCIS announced that the upcoming H-1B cap registration selection process will be via random lottery, as in prior years. USCIS had previously announced a wage-based selection process. Today’s announcement stated that “to give USCIS more time to develop, test, and implement the modifications to the H-1B registration system and selection process, DHS is delaying the effective date of this final rule from March 9, 2021, to Dec. 31, 2021. The delay will also provide more time for USCIS to train staff and perform public outreach as well as give stakeholders time to adjust to the new rule.”
Again, for the upcoming H-1B cap season, USCIS will apply the current regulations (random selection) to any registration period that takes place before Dec. 31, 2021. On February 5, 2021, USCIS announced that the first registration period for Fiscal Year 2022 will open at 9AM PT / 12 PM ET on March 9 and close at 9AM PT / 12 PM ET on March 25. The random lottery will be conducted following the close of the registration period, and account holders will be notified of selected registrations by March 31, 2021.
© Jewell Stewart & Pratt PC 2021
DHS publishes proposed change to cap-subject H-1B visa petition processing: a wage-based selection system
On October 28, 2020, the Department of Homeland Security (DHS) announced a notice of proposed rulemaking (NPRM) that would change the way cap-subject H-1B petitions are processed. The announced change would, in years when demand for new H-1B visas exceeds the annual numerical cap, replace the current annual lottery process with a system that prioritizes the selection of H-1B registrations based on the highest prevailing wage level that the employer’s salary offer equals or exceeds.
Prevailing wages are usually calculated by reference to data collected by the Department of Labor (DOL) through its Occupational Employment Statistics (OES) program. DOL uses OES data to set four levels of prevailing wage for occupations in locations across the United States. (On October 8, 2020, DOL made changes to this system that resulted in higher prevailing wages across the board.) Under DHS’ new rule, if more registrations are received during the H-1B registration period than is necessary to reach the year’s numerical cap, USCIS will rank and select the registrations based on the highest OES prevailing wage level that the proffered wage equals or exceeds.
USCIS will begin with registrations whose proffered wage meets or exceeds the OES Level 4 prevailing wage. If there are insufficient registrations with such wages, USCIS will then proceed in descending order to registrations whose proffered wage meets or exceeds the OES Levels 3, 2, and 1. (When USCIS had its first annual registration process for H-1B cap-subject cases, in March 2020, employers registered prospective H-1B employees without providing specific job or wage data. This proposed new regulation would require that the electronic registration form be amended to require the applicable OES prevailing wage level for the job offered.)
Thus, if more registrations are received at a particular OES prevailing wage level than is required to meet the applicable cap, USCIS will randomly select from all registrations containing that particular OES prevailing wage level. Put another way, if USCIS receives more than 65,000 registrations whose proffered wages exceed an OES wage level 4, the lottery will be run only on those registrations. If the H-1B beneficiary will work in multiple locations, each with different prevailing wages, USCIS will rank the registration based on the lowest OES wage level that the proffered wage will equal or exceed.
This proposed rule was published on November 2, 2020, and comments on the rule must be submitted on or before December 2, 2020. The public will have 60 days from November 2, 2020 to comment on the revisions to the H-1B Registration Tool and Form I-129 that will be required to implement the rule. The rule will not take effect until a Final Rule is published and made effective.
We will post further updates as they become available.
© Jewell Stewart & Pratt PC 2020
USCIS to resume its Premium Processing Service
On May 29, 2020, USCIS announced that it would resume its Premium Processing Service (“PPS”) in these stages throughout the month of June:
June 1, 2020: all eligible I-140 petitions
June 8, 2020: I-129 petitions that were filed/receipted before June 8, excluding H-1B “cap” cases (i.e., PPS “upgrades” will be available for non-H “cap” cases filed/receipted before June 8)
June 15, 2020: concurrent filings for H-1B cap-exempt filings
June 22, 2020: H-1B “cap” filings and cases filed/receipted after June 8
These dates are subject to change.
H-1B "cap" reached for FY 2021
U.S. Citizenship and Immigration Services (USCIS) announced on March 27, 2020 that it has received a sufficient number of H-1B petitions to reach the statutory H-1B visa “cap” for fiscal year (FY) 2021.
The USCIS announcement states “[w]e randomly selected from among the registrations properly submitted. We intend to notify petitioners with selected registrations no later than March 31, 2020, that they are eligible to file an H-1B cap-subject petition for the beneficiary named in the applicable selected registration.
Registrants’ online accounts will now show one of the following statuses for each registration (that is, for each beneficiary registered):
Submitted: A registration status may continue to show “Submitted” after the initial selection process has been completed. “Submitted” registrations will remain in consideration for selection until the end of the fiscal year, at which point all registration statuses will be Selected, Not Selected, or Denied.
Selected: Selected to file an FY 2021 H-1B cap-subject petition.
Denied: A duplicate registration was submitted by the same registrant for the same beneficiary, or a payment method was declined and not reconciled. If denied as a duplicate registration, all registrations you submitted for this beneficiary for the fiscal year are invalid.
Only petitioners with selected registrations may file H-1B cap-subject petitions for FY 2021, and only for the beneficiary in the applicable selected registration notice.”
USCIS has not announced when the paper filings will be due. Those details will be printed on the paper selection notices that USCIS will mail out, and will not display in the online account.
© Jewell Stewart & Pratt PC 2020
USCIS suspends Premium Processing Service for all I-129 and I-140 petitions, including cap-subject H-1B petitions
Updated March 23, 2020:
On March 20, 2020, USCIS announced that Premium Processing Service is temporarily suspended for all I-129 and I-140 petitions, not just for H-1B cap cases. Cases that were already filed and accepted with Premium Processing Service will be processed “in accordance with the premium processing service criteria.”
Original post from March 17, 2020:
On March 16, 2020, USCIS announced that its Premium Processing Service (PPS) has been suspended for H-1B petitions that are subject to the annual cap. Until PPS resumes for these petitions, USCIS will reject any Form I-907 (PPS request) concurrently filed with a cap-subject H-1B.
USCIS’ announcement states that the agency will resume PPS for H-1B petitions requesting a change of status no later than May 27, 2020, and will notify the public in advance of the resumption. The agency also announced that it will resume PPS for all other cap-subject H-1B petitions no earlier than June 29, 2020. On those dates, petitioners can submit Form I-907 to request PPS.
PPS remains available for all other H-1B petitions. More information will be posted here as it becomes available.
© Jewell Stewart & Pratt PC 2020
USCIS Webinar Provides Details on H-1B Electronic Registration System
As discussed in prior posts, USCIS is taking steps to implement an electronic registration system for use in the upcoming H-1B cap lottery for government fiscal year 2021. More details were released this week in a USCIS webinar for “Registrants”—that is, the companies and organizations seeking to submit an H-1B petition.
In the webinar USCIS stated that Registrants will be able to set up accounts on February 24, one week before the registration window of March 1-20 opens. The agency confirmed that should the electronic system fail, it would require petitioners to submit full petitions as in past cap seasons; related filing deadlines will be announced later, should they become necessary.
USCIS Announces Further Details About H-1B Electronic Registration
As discussed in our previous blog posts, USCIS is taking steps to implement an electronic registration to be used in the upcoming H-1B cap lottery for Fiscal Year 2021. A few further implementation details have now been released in a Federal Register posting dated January 9, 2020, and in a press release dated January 10, 2020. USCIS noted the following details:
The initial registration period will open from March 1 through March 20, 2020.
H-1B cap-subject petitioners, including those seeking Master’s cap H-1Bs, will be required to first register electronically with USCIS and pay the associated $10 H-1B registration fee for each submission.
USCIS Announces H-1B Electronic Registration Period
As discussed in prior posts, on January 30, 2019, USCIS announced a final rule regarding changes to the annual H-1B cap lottery system, requiring an electronic registration for each cap-subject petition. While the electronic registration requirement was suspended for the lottery in April 2019, USCIS is taking steps to implement it for the lottery in April 2020, including the collection of a $10 fee for each electronic registration submitted.
Now further implementation details have been released: USCIS announced on Friday, December 6, that electronic registration will be required for the upcoming filing season in April 2020, that the agency has “completed a successful pilot testing phase,” and that the initial registration period will run from March 1, 2020 to March 20, 2020.