USCIS today 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. All registrations submitted during the registration period will be considered. Each year, USCIS makes available 58,200 H-1B’s under the regular cap (for those who possess a Bachelor’s degree or equivalent) and 20,000 under the advanced degree exemption (for those who have earned a U.S. Master’s or higher degree). If USCIS receives enough registrations to meet the caps by March 25, it will randomly select registrations and send selection notifications.
When and how will winners be notified?
By March 31, USCIS will send an electronic notice to the account holder who submitted the registration that an action has been added to the account.
Will candidates with a U.S. Master’s or higher degree continue to qualify for the Master’s degree exemption?
Yes. U.S. Advanced Degree professionals (applicants who hold a master’s or higher degree from a U.S. university) will first be considered for selection for 58,200 H-1Bs and if they are not selected, they will considered for selection for 20,000 H-1Bs under the Master’s Cap exemption.
What is the fee?
USCIS charges a registration fee of $10 per applicant. LAC will charge a legal fee for attorney review of the position and candidate eligibility for H-1B classification.
If the registration is selected in the ranking process, the remainder of the H-1B petition legal fee and regular USCIS filing fees will apply for petitions filed under the cap.
When should H-1Bs be initiated with LAC?
H-1Bs should be initiated now to ensure a smooth process and minimize the anxiety on employers and employees.
Which individuals may need cap-subject H-1B sponsorship?
- F-1 students currently working pursuant to Optional Practical Training (OPT)
- Individuals in TN status (pursuant to the NAFTA Treaty)
- Individuals who are nearing the end of their L-1B status
- Individuals who are nearing their first L-1B extension. Based on the increased scrutiny by USCIS of the L-1B classification (i.e. increased RFEs and denials), switching to H-1B status rather than filing for an L-1B extension may be a better option depending on the particular case
- Individuals who are in their 4th or 5th year in L-1A status and are subject to quota backlogs preventing them from completing the permanent residency process
- Candidates coming from abroad or not currently work authorized
- Candidates seeking to transfer an H-1B from a cap-exempt to a cap-subject employer (such as a university to a for-profit company)
- Individuals with H-4 EADs (given that H-4 EADs are also slated for elimination)
What types of cases are NOT subject to the H-1B cap?
- H-1B amendments (filing to change a term or condition of employment for an employee who already holds H-1B status)
- H-1B extensions (filing to extend the stay of an employee who already holds H-1B status)
- H-1B transfers (filing to transfer an H-1B from Employer A to Employer B)
- H-1B petitions for someone who has held an H-1B in the past and has not exhausted the full six years of H-1B time
- H-1B petitions filed by cap-exempt employers, such as universities or non-profit research institutions
What happens to registrations that are not selected?
Registrations not selected in the ranking process will remain on reserve in the system for the applicable fiscal year. These unselected registrations will remain on reserve in the event USCIS needs to increase the number of registrations selected to meet the H-1B Regular cap or H-1B Advanced Degree cap slots available.
What are the next steps if a candidate is selected in the lottery?
An H-1B petition will then be prepared and filed with USCIS during the prescribed filing period. If USCIS requires more evidence before it can issue a decision, a request for evidence will be issued. Once an H-1B petition has been approved, employment can start no earlier than October 1st.
How much time will USCIS provide to file H-1B petitions once notices of selection have been issued?
USCIS will provide a period of 90 days for petitions based on selected H-1B registrations to be filed. The filing window is expected to open on April 1st.
Will Premium Processing be available?
USCIS has not confirmed if premium processing will be made available. The availability of premium processing service is usually determined later in the H-1B cap filing process.
Should you have any questions or concerns regarding the above, please contact your LAC attorney.
This update was prepared by Claudia Martorell, Partner, Larrabee Albi Coker LLP.
Legal Disclaimer: This e-blast is provided for informational purposes only and does not substitute for legal advice based on the circumstances of a specific matter. Immigration laws and policies change frequently, often without notice. It is therefore important to seek direct legal counsel based upon individual circumstances.