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FY2022 H-1B CAP FILINGS

22:35 08 January in News Updates
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The filing window for registration to seek an FY2022 (10/1/2021 to 9/30/2022) H-1B cap-subject or quota number will likely open in March 2021.

The earliest start date of employment for approved petitions will be October 1, 2021.

How will the process change this year?

USCIS is again changing the way H-1B cap-subject petitions are selected in the event demand exceeds quota limitations.

In 2019 and prior years, a fully completed petition was required for consideration in the random selection process that took place the first week in April of each year.  In 2020, the process changed so that candidates eligible for an H-1B submitted a skeletal registration electronically first.  A full H-1B petition was then only required for those selected in the lottery.

This year, unless an injunction is issued, rather than using a lottery and random selection process after the initial registration period closes, USCIS will rank and select H-1B registrations based on those employers/ positions which are offering the highest wages.  For additional information, see our Legal Update:  DHS Publishes Final Rule to Replace H-1B Cap Random Selection Process with Wage-Based Selection Process.

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 the account holder when the registration period closes.   USCIS has not yet advised when the registration period will open or close.

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?

USCIS will electronically notify an employer’s authorized representative of registrations that have been selected in the ranking process.  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 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.

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?

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.  In light of the new wage rule for selection in the lottery, in addition to the information about the employer and employee as was required for H-1B registration last year, the registration process will likely also require details regarding the position offered to the beneficiary, including the job title, job description, worksite location(s), position requirements and salary.   The legal fee will cover attorney analysis of these factors.

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.

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 selected registrations 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.   They will also monitor whether the salary offered in the registration is consistent with the salary offered in the subsequently-filed petition.   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 and can honor the salary offered.

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 now 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

Should you have any questions or concerns regarding the above, please contact your LAC attorney.

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This update was prepared by Fausta M. Albi, 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.

 

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