In the months leading up to the time of year commonly known as “H-1B cap season,” when firms busily work to prepare H-1B cap-subject filings subject to the new fiscal year’s limited supply of H-1B visas, the question on the top of many immigration lawyers’ minds is, “What process will U.S. Citizenship and Immigration Services (USCIS) use to select H-1B petitions for filing from a pool that will likely exceed the number of allocated H-1B visas?”
Last year, USCIS established a system requiring H-1B petitioners and their legal representatives to use a registration process designed to invite submission of petitions only by those registrants that had received advance notification from USCIS of the random selection of their registrations in the H-1B lottery.
On January 8, 2021, Department of Homeland Security (DHS) had announced a final rule for the selection of registrations based on a ranking of salary and prevailing wage levels – highest to lowest - within a position’s Standard Occupational Classification (SOC) and area of intended employment. On February 4, 2021, DHS posted a final rule delaying the effective date of the wage-based selection rule to December 31, 2021. Employers planning to sponsor H-1B beneficiaries under the FY 2022 cap now have certainty that USCIS will continue to use the H-1B electronic registration process to select H-1B cap-subject petitions for filing.
Employers and their legal representatives must now plan according to the following milestones related to the registration and submission of petitions on behalf of proposed beneficiaries subject to the FY 2022 H-1B cap:
March 9 – Initial H-1B registration window opens at Noon, Eastern Time.
March 25 – Initial H-1B registration window closes at Noon, Eastern Time.
March 31 – Date by which USCIS notifies petitioners whose registrations were selected in the random lottery.
April 1 – USCIS will begin accepting FY 2022 H-1B cap-subject petitions for filing.
Employers should now begin working with immigration counsel to identify employee candidates for prospective H-1B filings. Employers should be prepared to provide their legal representative with information about the proffered position, including job description, salary, education and experience requirements, as well as information about the proposed beneficiary, including biographical information, travel documents, academic degrees, transcripts, and resumes. Employers may also wish to discuss with their legal representative strategic aspects of filing, including timing the H-1B employment start date and whether the H-1B beneficiary may be eligible for a change of nonimmigrant status within the United States or should plan to apply for an H-1B visa at a U.S. consulate once USCIS approves the petition. Early and informed communication with immigration counsel can help ensure petitioners meet each of the steps for registering and filing successful H-1B cap-subject petitions.