21:28 13 January in News Updates

The filing window for H-1B registration to seek a FY2021 (10/1/20 to 9/30/21) cap or quota number will be from 3/1/20 through 3/20/20.  The earliest start date of employment for approved petitions is 10/1/20.

How will the process change this year?

USCIS is changing the way H-1B “cap” petitions are filed and selected.  Previously, a fully completed petition was required for consideration in the random selection process that took place the first week in April of each year.  This year, the process is changing so that candidates eligible for an H-1B will be registered electronically during the registration window and a full H-1B petition will only be required for those selected in the lottery.

Will a lottery be required?

Likely yes.  We anticipate that FY2021 H-1B cap-subject filings will again exceed the quota limitations.  If more than a sufficient number of registrations are received, USCIS will randomly select the number of registrations projected as needed to reach the FY2021 H-1B numerical allocations after the initial registration period closes and notify registrants with selected registrations no later than 3/31/20.

When and how will winners be notified?

USCIS will send an electronic notice to the account holder who submitted the registration that an action has been added to the account.
USCIS will notify selected registrants in this manner no later than 3/31/2020.

What happens to registrations that are not selected?

USCIS has indicated that those registrations not selected in the lottery process will remain on reserve in the system for the applicable fiscal year.  These unselected registrations will remain on reserve in the event USCIS believes it needs to increase the number of registrations selected to meet the H-1B Regular cap or H-1B Advanced Degree cap slots available.

What happens if the new system is inoperable?

USCIS has discretion to suspend the registration process if it determines the registration process is inoperable for any reason.  If the online electronic registration system cannot be used, USCIS will accept H-1B cap-subject petitions in accordance with its past practices.

What are the next steps if a candidate is selected in the lottery?

USCIS will electronically notify an employer’s authorized representative of registrations that have been selected in the lottery no later than March 31st.  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 H-1B petitions selected in the lottery to be filed.  The filing window is expected to open on April 1st.

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 in the general lottery of 58,200 H-1Bs and if they are not selected, they will be placed in the lottery of 20,000 H-1Bs under the Master’s Cap exemption.

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.

What is the fee?

The USCIS registration fee is $10 per applicant plus an applicable legal fee for preliminary LAC attorney review of the position and candidate eligibility for H-1B classification.  If selected, the regular H-1B petition filing and legal fees apply for petitions filed under the cap.

How is LAC preparing H-1Bs in light of the above?

We will screen the position and candidate in advance to ensure eligibility to file an H-1B petition if the candidate is selected for filing.  We will request certain documents and information from the employer and the candidate to confirm eligibility and collect the information necessary to complete the registration process.

USCIS has indicated that it will monitor whether registrations selected in the lottery are then used to file an actual H-1B cap-subject petition and as part of the registration process, will require that employers complete an attestation confirming the intent to file an H-1B petition for those candidates who are selected in the lottery.  As a result, US employers should only register foreign nationals in the online electronic registration system if they are certain they will file an H-1B cap-subject petition for the foreign national.

Once the registration results are available, we will notify the employer and the candidate if they have been selected. H-1B petitions for those selected will be prepared for filing during the 90 day window, which is expected to open on April 1st.

When should H-1Bs be initiated with LAC?

H-1Bs should be initiated as soon as possible to ensure a smooth process and minimize the anxiety on employers and employees.

What are the H-1B quota limitations?

  • Regular cap (Bachelor’s degree):                      58,200
  • Regular cap, Citizens of Chile:                            1,400
  • Regular cap, Citizens of Singapore:                     5,400
  • Master’s cap exemption (Master’s degree or higher from a U.S. university):   20,000

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

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