U.S. Citizenship and Immigration Services (USCIS) will begin accepting new H-1B petitions subject to the annual quota for fiscal year (FY) 2022 on or shortly after April 1, 2021. USCIS has confirmed it will use the same preregistration system introduced for last year’s lottery and will accept registrations starting on March 9, 2021. The registration window will close at noon eastern standard time (EST) on March 25, 2021. Importantly, the U.S. Department of Homeland Security (DHS) has confirmed it will delay the effective date of the new H-1B selection final rule until December 31, 2021. This new rule would have replaced the random lottery selection process with a new selection process that prioritized registration selections based on wage level. The delay is intended to give USCIS more time to develop, test, and implement the new H-1B selection process in the rule, as well as provide more time to train staff and give stakeholders time to adjust to the rule.
Delayed H-1B Visa Lottery Rule Changes
Published on January 8, 2021, and scheduled to have gone into effect prior to the FY 2022 cap season, the final rule, “Modification of Registration Requirement for Petitioners Seeking to File Cap-Subject H-1B Petitions,” would have changed the way USCIS allocated new H-1B visa numbers to registrants. Instead of the computer-generated random selection process used in years’ past, the rule provides that USCIS prioritize registration selections based on the highest equivalent Occupational Employment Statistics (OES) prevailing wage level for the role and area(s) of intended employment. In practice, this would have meant that employers paying the highest-level salaries for their H-1B employees would have the best chances of being selected in the lottery. The eventual implementation of this rule would leave far fewer, or potentially no, new H-1B visas for registrations where the sponsored employee’s offered salary is the equivalent to OES level I or II wages, the lowest two levels of the four-tiered prevailing wage system. On February 4, 2021, DHS confirmed that the final rule’s effective date would be delayed until December 31, 2021, ensuring that it would not impact this year’s cap season.
FY2022 H-1B Lottery Process
Prospective petitioners and representatives can begin submitting registrations on March 9, 2021, through the myUSCIS.gov online account. As with FY 2021, employers submitting their cap candidates only need to provide basic information regarding those individuals whom they planned to sponsor for new H-1B visas. The $10 fee for each registration has also remained the same as last year. If USCIS receives enough registrations by March 25, 2021, to fill the annual quota, it will randomly select registrations and send notifications of selection through users’ myUSCIS.gov accounts. Employers only need to submit full H-1B petitions for those registrants selected in the lottery. According to USCIS, the agency intends to notify account holders of selection by March 31, 2021, but has not confirmed the filing window for full petitions. Last year, USCIS provided a window of 90 days in which to file petitions selected in the lottery, starting from the date of selection, so Ogletree Deakins anticipates a similar filing window this year.
How Can Employers Prepare for the FY2022 H-1B Cap Season?
|Anytime||Employers, or representatives, can create H-1B registrant accounts with myUSCIS.gov.|
|March 9, 2021||The online registration period for FY 2022 H-1B cap cases opens at noon EST. This will be the first day that attorneys and employers can access the H-1B registration tool to register their candidates.|
|March 25, 2021||The online registration period will close at noon EST. All electronic registrations must be submitted with registration fees paid.|
|March 26–31, 2021||USCIS will conduct the H-1B regular cap and master’s cap selection process.|
|Approximately April 1–June 30, 2021||USCIS will notify employers and their representatives about selection results, which can be accessed via myUSCIS.gov. Employers will have 90 days from date of selection to file H-1B petitions.|
USCIS’s FY 2021 registration page provides information on how to create an H-1B registrant account.
Ogletree Deakins’ Immigration Practice Group will continue to monitor developments with respect to the H-1B registration process and will post updates on the firm’s Immigration blog as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.