Washington, D.C. USCIS will open H-1B electronic registration period from March 9th through March 25th, 2021 for 2021 lottery. The H-1B random selection process, if needed, will then be run on those electronic registrations and it will notify the employer or the attorney on selected entries on the first draw by March 31st. Only those with selected registrations will be eligible to file H-1B cap-subject petitions. The agency may determine it is necessary to continue accepting registrations, or open an additional registration period, if it does not receive enough registrations and subsequent petitions projected to reach the numerical allocations.
USCIS had announced that to give it 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. It said 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. On Jan. 7, 2021, U.S. Citizenship and Immigration Services (USCIS), an agency within U.S. Department of Homeland Security (DHS), had announced the H-1B Selection final rule, which amended the regulations governing the process by which USCIS selects H-1B registrations for the filing of H-1B cap-subject petitions.
For the upcoming H-1B cap season, USCIS will apply the current regulations (random selection without giving any preference based on wage offered) to any registration period that takes place before Dec. 31, 2021. [Learn more about H-1B and H-1B electronic registration]
USCIS had completed a successful pilot testing phase and implemented the registration process for the H-1B lottery cases in 2020. We had posted a news article about the USCIS proposal to implement H-1B registration process. Employers seeking to file H-1B cap-subject petitions for the fiscal year 2021 cap, including those eligible for the advanced degree exemption, must first electronically register and pay the associated H-1B registration fee. The electronic registration process will dramatically streamline processing by reducing paperwork and data exchange, and will provide an overall cost savings to petitioning employers.
H-1B Electronic Registration for the lottery selection
Under this process, employers seeking H-1B workers subject to the cap, or their authorized representatives, will complete a registration process that requires only basic information about their company and each requested worker. For this year, USCIS will open H-1B electronic registration period from March 9th through March 25th, 2021. The agency may determine it is necessary to continue accepting registrations, or open an additional registration period, if it does not receive enough registrations and subsequent petitions projected to reach the numerical allocations.
DHS formally created the H-1B registration requirement in the final rule, Registration Requirement for Petitioners Seeking To File H-1B Petitions on Behalf of Cap-Subject Aliens (PDF), published on Jan. 31, 2019, and effective on April 1, 2019. DHS intends to publish a notice in the Federal Register in the coming weeks to formally announce implementation of the H-1B registration system and provide additional details on the process.
On Nov. 8, 2019, DHS published a final rule establishing a $10 H-1B registration fee. The registration fee final rule is effective on Dec. 9, 2019, and will apply to registrations submitted during the initial and future registration periods.
What is an H-1B?
In the United States, the H-1B program enables any business or the organization in the U.S. to sponsor H-1B to hire a skilled foreign workers for a period of time. In particular, that category is an occupation that uses highly specialized knowledge, and also requires at least a bachelor’s degree or its equivalent in a related field. One can also qualify based on required progressive and professional work experience with a combination of education other than a bachelor’s degree or a degree in an unrelated field.
When is the H-1B open to applicants?
Pursuant to immigration regulations, the latest date that the United States Citizenship and Immigration Services (USCIS) could begin the registration process for FY2022 is March 18th, 2021.
USCIS would also be required to announce the start and end dates of the initial registration period on its website on no later than February 16, 2021. For example, the H-1B registration process for FY2021 began on March 1, 2020 and concluded on March 20, 2020.
How Do I Know If I Qualify for H-1B?
To qualify for H-1B, there must be:
1) An offer of employment from a U.S. employer
2) For a job that qualifies as “specialty occupation,” i.e., at least a bachelor’s degree in a specific field or its equivalent (or its foreign equivalent, and related work experience can count towards the educational requirement)
3) Employer promises to pay the prevailing wage or offered wage, whichever is higher. The employer also needs to pay the filing fees of $460, $500 and $750 (or $1500 if the employer has more than 25 employees). We have provide further information in this H-1B section post.
What Does the General Process Look Like?
USCIS utilizes an electronic registration and selection process. The U.S. employer, during the initial registration window period, will need to satisfy three elements:
- The employer or its attorney must submit the completed H-1B online registration and pay a $10 registration fee.
- If selected, the employer should obtain a certified Labor Condition Application (LCA) from the Department of Labor.
- The H-1B petition, certified LCA and other supporting documents must be submitted within 90 days of selection.
In determining whether there are enough registrations to meet the H-1B regular cap, USCIS considers all properly submitted registrations relating to the beneficiaries that may be counted under the regular cap, including those also eligible for U.S. Master/PhD’s cap. After USCIS has determined it will no longer accept registrations under the Regular Cap, it will determine if there is a sufficient number of remaining registrations to meet the H-1B advanced degree exemption.
If approved, the initial period of stay is up to three years. Foreign nationals subject to the 212(e) two-year home residence requirement are not eligible for H-1B visa. Employees can have multiple concurrent H-1B petitioners. Dual Intent is recognized. H-1B dependents may study but generally not work in the U.S. unless the H-1B employee’s extension is based on AC21.
Have There Been Any Recent Changes?
Yes. On February 2, 2021, the Department of Labor announced a delay in the effective date of a previous rule for H-1B, H-1B1, E-3 and PERM Workers. DOL has issued notice informing the public that the previously published Final Rule would be delayed from March 15, 2021 to May 14, 2021.
On January 20, 2021, Ronald A. Klain, Assistant to the President and Chief of Staff, issued a memo titled “Regulatory Freeze Pending Review.” The memo directed federal agencies to consider postponing the effective date of any rules published in the Federal Register but not yet taken effect to allow the new administration to review “any questions of fact, law, and policy” raised by the rule. This notice also informs the public that the Department will solicit comment on the final rule for a period of 15 days. Comments must be received by February 16, 2021.
The previous rule, published January 8, 2021 by the Department of Homeland Security (DHS), would authorize USCIS to select H-1B registrations for filing based on the highest salaries first and then coming down the line. The rule would have been effective after 60 days.
Similarly, on Feb 4, 2021 USCIS announced 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. It said 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. On Jan. 7, 2021, USCIS had announced the H-1B Selection final rule, which amended the regulations governing the process by which USCIS selects H-1B registrations for the filing of H-1B cap-subject petitions.
News and alerts for the H-1B program as well as other areas of immigration law are updated here frequently.
Can Adhikari Law Help?
Yes. Adhikari Law will be delighted to provide you and your employer our legal counsel for the entire H-1B process. Please do not hesitate to submit a contact form and we will respond shortly.
Alternatively, please call or e-mail us today to schedule a legal consultation:
Phone: 202-600-7742 (office), 888-820-44330 (toll-free)
If you want to learn more about this topic or Cap-Subject H-1B in general or about our legal services for the preparation and the filing of H-1B Electronic Registration for the lottery or the H-1B petition do contact us at (+1) 202 600 7745, or email us at firstname.lastname@example.org