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H-1B Cap Season Is Back, With Possible Changes

This article was updated February 5, 2021. Read the updated articles “FY2022 H-1B Lottery To Proceed Without Wage-Based Priority” and “H-1B FY2022 Cap Update: Registration Period Begins March 9, 2021.”

It is once again time for employers hoping to file H-1B petitions for the FY2022 “cap” to begin the planning process. Like last year, U.S. Citizenship and Immigration Services (USCIS) is keeping employers anxiously waiting for details about possible changes to the process.

Employers who have historically filed H-1B petitions that are subject to the annual cap of 85,000 visas will recall that dramatic changes took place last year. The changes modernized and streamlined the H-1B lottery process, reducing the cost to employers associated with rejected petitions. Instead of filing complete petitions during the first five days of the acceptance period, USCIS implemented an electronic H-1B lottery.

We expect that a lottery system will remain in place for FY2022. This means that employers seeking H-1B status for FY2022 (beginning on October 1, 2021) will submit limited details relating to each H-1B candidate, pay a $10 registration fee, and will only submit a full H-1B petition if the entry wins a lottery spot. We expect that the lottery registration system will be available at the beginning of March and that petitioners will be notified of the registrations that have been selected by March 31, 2021.

Possible Change: A Wage-Based Priority System

The exact requirements for lottery submissions and the method of application have not been confirmed. This is due to a final rule published on January 8, 2021, by the Department of Homeland Security (DHS) that would change the method by which H-1B visas would be allocated, prioritizing those candidates whose offered salaries fall into the highest wage levels for their occupations. The text of the rule is available here: https://www.govinfo.gov/content/pkg/FR-2021-01-08/pdf/2021-00183.pdf.

If this final rule takes effect, employers should be prepared for the fact that those candidates whose wages fall under Level I of the Department of Labor’s Occupational Employment Statistics (OES) four-level wage system would not be allotted H-1B visas. Based on historical statistics, it would appear those candidates with Level III and Level IV wages would almost certainly be allocated H-1B visas. Those with Level II wages would be selected in a lottery process, leaving no visas available for those with Level I wages.

The rule is scheduled to take effect on March 9, 2021, and to be in place for this year’s H-1B cap. However, it is possible that the rule will be suspended by the Biden administration, though the purpose of the rule seems to align with the new administration’s immigration priorities (which include methods to ensure that temporary visas do not “undermine wages”). The final rule also is likely to be challenged in federal court on both substantive and procedural grounds, with the possibility of injunctive relief delaying implementation.

Expected Process (Tentative)

Based on currently available information, we can provide limited details about the expected process. Note that these details are subject to change:

  • February 24, 2021: Employer Account Registration is expected to open. Every employer seeking H-1B visas must have a USCIS account for the H-1B lottery. USCIS is expected to allow employers to register beginning on February 24.
  • March 1, 2021-March 20, 2021: H-1B Lottery Registration is expected to be open. During this time, employers (or their attorneys) can submit lottery registrations for foreign national candidates.
  • March 31, 2021: Lottery results are expected to be announced. Those who are allocated visas will obtain selection notices that they will file with their H-1B petitions.
  • April 1, 2021-June 30, 2021: Expected filing period for selected registrants.

Expected Information Required for Lottery Submissions

To submit a lottery entry, we expect that employers (or their attorneys) will be required to provide the following details:

Employer Information:

  • Legal name of the prospective petitioning entity
  • The Doing Business As name(s) of the petitioning entity, if applicable
  • Employer identification number (EIN) of the petitioning entity
  • Primary U.S. office address of the petitioning entity
  • Legal name, title and contact information (daytime phone number and email address) of the authorized signatory

Beneficiary Information:

  • Beneficiary’s legal name
  • Beneficiary’s gender
  • Whether the beneficiary has a master’s or higher degree from a U.S. institution of higher education
  • Beneficiary’s date of birth
  • Beneficiary’s country of birth
  • Beneficiary’s country of citizenship
  • Beneficiary’s passport number

Occupation and Wage Information:

If the final rule outlined above takes place, additional details will be needed including, at minimum:

  • OES occupation category
  • OES wage level
  • Work location(s)

Your Bose McKinney & Evans immigration team can work with you to determine the appropriate OES category and wage level based on the proposed job description and the minimum educational and experience requirements required for the role.

Method of Submission

We expect that USCIS will leverage the https://my.uscis.gov/ online portal for the H-1B registration process. Employers may submit registrations independently or through an attorney, provided that a Form G-28 is submitted to confirm the attorney’s representation of the employer.

Bose McKinney & Evans is prepared to submit H-1B registrations on behalf of its clients and urges employers to at least speak with an immigration attorney prior to submitting a registration.

Preparing for the Lottery

In many cases, employers may wish to wait to perform significant work on H-1B petitions until after it becomes aware of the lottery results. However, it would be wise for employers to, at minimum, confirm the following:

  1. That the offered position is a specialty occupation that requires a candidate to hold, at minimum, a bachelor’s degree in a specific field;
  2. That the employer understands the prevailing wage for the position and is prepared to meet or exceed the wage; and
  3. Whether the beneficiary is a student who seeks to benefit from “cap gap” employment authorization. Cap gap benefits only attach upon filing of the H-1B petition, not by submitting a lottery registration. As such, employers seeking cap gap benefits may wish to prepare the full H-1B petition sooner so that the petition may be submitted prior to the beneficiary’s employment authorization expiration date.

Employers also may wish to prepare Labor Condition Attestations and related posting notices in advance to speed the petition process for those candidates who win the H-1B cap lottery.

What To Do Now

We recommend that employers prepare a spreadsheet or list of individuals for whom they wish to submit H-1B lottery registrations.  The list or spreadsheet should include the details noted above relating to the employer and beneficiary and should also include:

  • Job title
  • Minimum job requirements
    • Degree
    • Degree field
    • Years of experience
  • Offered salary
  • Job description
  • Beneficiary’s current immigration status
  • Expiration date of current immigration status
  • Expiration date of current employment authorization
  • Basis for current employment authorization (H-4, L-2, OPT, CPT, etc.)

Once these details are ready, please submit your spreadsheet or list to nkersey@boselaw.com for review and preparation for the lottery.