US Citizenship & Immigration Services (USCIS) announced that the initial registration period for the fiscal year (FY) 2022 H-1B cap will begin at 12pm ET on March 9 and run through 12pm ET on March 25. During this registration period, prospective petitioners and representatives will be able to submit their registrations using their myUSCIS account and pay the $10 fee for each registration submitted on behalf of each beneficiary.
If USCIS receives enough registrations by March 25, the agency will randomly select registrations (i.e., through a lottery) and send selection notifications via users’ myUSCIS online accounts. USCIS intends to notify account holders by March 31. An H-1B cap-subject petition may then only be filed by a petitioner whose registration for that beneficiary was selected in the H-1B registration process. If a case is selected in the lottery, employers will be permitted to file full H-1B petitions starting April 1 at the earliest during a filing period of at least ninety days.
Prospective petitioners submitting their own registrations (US employers and US agents, known as “registrants”) will use a “registrant” account that will be available soon. While representatives may add clients to their accounts at any time, both representatives and registrants must wait until March 9 to enter beneficiary information and submit the $10 registration fee. USCIS notes that prospective petitioners or their representatives will be able to submit registrations for multiple beneficiaries in a single online session.
Through the myUSCIS account, they will be able to prepare, edit, and store draft registrations prior to making the final payment and submitting each registration. Each registration submitted will receive a confirmation number to be used to track registrations only—this number cannot be used to track case status at the Case Status Online page. USCIS has additional information, including step-by-step registration instructions, on the H-1B Electronic Registration Process page.
Importantly, USCIS notes that the final rule announced under the Trump administration that would change how cases were selected for adjudication focusing on those beneficiaries with the highest salaries, will be delayed until December 31, 2021. USCIS notes they will apply the regulations currently in place (that is, the random lottery) to the initial registration period this year, and any subsequent registration periods for the FY 2022 registration process that takes place before December 31, 2021.
FREQUENTLY ASKED QUESTIONS ABOUT THE H-1B CAP
The following will provide background and guidance on some common questions surrounding the H-1B cap:
1. WHAT IS THE H-1B?
The H-1B is a nonimmigrant visa for foreign nationals who will be employed temporarily in a “specialty occupation,” or as fashion models of distinguished merit and ability. A specialty occupation is defined as one that requires a bachelor’s degree in a specific field, or the equivalent experience, in order to perform the duties of the position offered. For example, architects, graphic designers, accountants, lawyers, engineers, and computer programmers, are all specialty occupations and, therefore, likely to be eligible for H-1B’s. H-1B petitions are granted for up to three years at a time, for a maximum of six years. H-1B visa holders may also be sponsored for permanent residence which could allow for an extension of the H-1B petition past the six years.
Under the current law, there is an annual limit of 65,000 new H-1B’s. This is referred to as the “H-1B Cap.” There are an additional 20,000 visas available for current or prospective employees who possess an advanced degree earned at a US accredited educational institution. This is referred to as the “Master’s Cap.” New H-1B’s become available on October 1, the first day of the government’s fiscal year. USCIS will only start accepting petitions for a new H-1B six months prior to the beginning of their new fiscal year (i.e., April 1).
2. TO WHOM DOES THE CAP APPLY?
The cap applies only to those individuals who have never had an H-1B visa or who have been outside the US for more than a year after having held H-1B status in the US.
3. CAP-GAP: WHAT IF THE F-1 OPT EXPIRES BETWEEN APRIL 1 AND BEFORE OCTOBER 1?
With respect to students on F-1 OPT, whose OPT expires after April 1 and before October 1, if the case is picked in the lottery after the registration period closes, as long as the H-1B petition is filed prior to the expiration of the OPT, the foreign national's work authorization will be automatically extended until October 1, by virtue of the H-1B filing. To ensure the foreign national does not fall out of status:
The foreign national must take the H-1B receipt notice to their school to receive a new I-20 indicating the extension of the OPT;
The foreign national MUST remain in the US between the expiration of the OPT and October 1st in order to have continued work authorization. If they travel internationally during this time, they will abandon the change-of-status and may not be able to return to the US until September 21, 2021, if the case is approved;
If the student’s OPT expires before the employer has the receipt for filing the case, they will have to stop working until a receipt notice for the H-1B arrives indicating that they were selected in the lottery and the case was filed. The student may only resume working once the receipt notice has been issued; and
If the H-1B is not approved by October 1, the foreign national will have to stop working if their OPT has expired.
4. WHAT ABOUT J-1’s?
J-1’s do not get the same cap-gap extension like students on F-1 OPT. In addition, the foreign national should be cautious about communicating with the J sponsoring company about any application since the foreign national should be intending to return to their home country at the end of their training.
5. WHAT ARE SITE VISITS?
USCIS will conduct random site visits on H-1B sponsors. Therefore, with respect to H-1B petitions, petitioners should:
Be vigilant with record keeping, public access files, etc.;
Make sure that all H-1B fees are paid by the sponsor without seeking reimbursement from the foreign national; and
Withdraw petitions for foreign nationals they no longer employ;
6. WHEN CAN FOREIGN NATIONALS START WORKING IF SELECTED?
Although an H-1B petition may be approved before October 1, the foreign national may not commence work with the sponsor until October 1, 2021, or later, if the case is not approved by October 1, 2021 (unless they currently hold another valid work visa valid past September 30th).
7. SHOULD WE PAY FOR PREMIUM PROCESSING?
We do not know if premium processing will be available this year but if it is petitioners should strongly consider paying for it. Given how much faster a case is processed with premium processing, it is for many worth the fee to ensure that petitioners and beneficiaries know the outcome of the case as soon as possible.
8. WHAT ABOUT INTERNATIONL TRAVEL?
For any foreign national in the US in a valid status at the time the H-B change-of-status petition is filed, there will be consequences if they travel internationally while the change-of-status petition is pending with USCIS. Therefore, foreign nationals should contact an experienced immigration attorney regarding travel before any plans are booked to discuss the consequences. See also the COVID-19 impact to travel below.
9. ARE H-1B’S MORE LIKELY TO RECEIVE REQUESTS FOR EVIDENCE?
Cases filed for certain occupations are more likely than others to receive Requests for Evidence (RFE’s) for H-1B cases in particular. The requests are focused on whether the foreign national is being offered a “specialty occupation,” i.e., a position that is complex enough to require a specific degree. Additionally, junior positions are also under significant scrutiny.
10. IS COVID-19 AFFECTING THE H-1B CAP?
For now, USCIS is processing H-1B petitions as before with little impact to the case. If anything, regular processing may be a little bit slower than before. The big impact is on the foreign national’s ability to travel and get a new H-1B stamp once the case is approved. As of the publication of this post, most new H-1B’s are not allowed to be issued at US Embassies/Consulates abroad because of former President Trump’s presidential proclamation. President Biden is expected to revoke this proclamation but it is not known when. Additionally, even if this proclamation is revoked, those needing to return to Ireland, UK, the Schengen area, Brazil, South Africa, Iran, and China currently are subject to travel restrictions by virtue of being physically present in those countries. These “country” restrictions may be lifted by October this year but foreign nationals wishing to leave the US to get an H-1B stamp at any point should discuss with an experienced immigration attorney.
Best of luck to everyone entering the H-1B cap!