This memo is intended to provide information related to the H-1B “Cap” filing season that commences on April 1, 2021 for new H-1B filings that commence on October 1, 2021. Prior to April 1 filing, companies need to preregister their H-1 candidates between noon (ET) March 9, 2021 and ending non (ET) March 25, 2021. These are known as Fiscal Year 2022 filings as the new government fiscal year for 2022 begins on October 1, 2021.
Please note that as a result of recent regulatory changes published in the Federal Register there is a possibility that there will be changes to the system outlined below, or that USCIS will cancel the advance registration process this year and require that all employers file complete H-1B Petitions with USCIS in the first five business days of April. Should the process be altered in any way we will timely update this memo and invite you to return to view any updates.
The Caps and USCIS’ New Process
The so called “Cap” we refer to applies to all NEW H-1B filings where the sponsored employee has NOT previously been counted against the Cap and where the employer is not somehow Cap-exempt. (Some employers or employment situations permit Cap exemption. If the applicant has previously held an H-1B status, even years ago, and as long as time remains within their six-year period of total stay, we can file a Cap-exempt H-1B petition.)
There are essentially two Caps. The first is the standard Cap for regular H-1B filings (referred to as the “Regular Cap”). There are only 65,000 Regular Cap H-1B filings permitted per fiscal year, and of this number, 6,800 available spaces have been reserved for citizens of Chile and Singapore – what is not used by these individuals in a given year is available for Regular Cap H-1B applicants the following year. The second Cap is technically a Cap exemption, but since it is limited in number and ultimately runs out each fiscal year, it in essence creates a separate Cap. This is in reference to an additional 20,000 H-1Bs set aside for individuals who graduate from a U.S. Master’s degree program (or higher-level education) that meets certain criteria (referred to as the “Master’s Cap”).
Beginning in 2020, for the FY 2021 Cap, USCIS implemented an electronic registration system for cap selection. Unlike past cap seasons, where petitions were fully prepared and filed within the first five business days in April, employers or their authorized representatives last year submitted a registration request and paid a $10 registration fee for each proposed H-1B worker during the initial registration period which ran from March 1st, 2020 through March 20th, 2020. This year the registration period was announced on February 5, 2021 and run from noon (ET) March 9, 2021 through noon (ET) March 25, 2021. If the number of registrations received exceed the quota, which is expected, USCIS will conduct the “registration lottery” and randomly select the number of registrations needed to reach the H-1B numerical limit. After the initial registration period closes, USCIS will electronically notify selected registrants no later than March 31st, 2020. Selected registrations are those who have “won” the H-1B lottery and are eligible to file a cap-subject petition starting April 1st. Only selected registrations will be eligible to file a petition for the foreign national listed in the registration during a filing period of at least 90 days. Registrations that were not selected in the lottery will remain on reserve for the applicable fiscal year. In the event that USCIS needs to select more registrants to meet the cap, USCIS would select from the registrations from the reserve. Last year USCIS held a follow up “lottery” from the reserve and contacted employers and their representatives on August 14th to invite more registrants to apply for H-1B status. We expect that USCIS will again consider more invitations later this summer if additional room is available for H-1Bs to meet the Cap quotas.
Given the demand for new H-1Bs, with USCIS receiving at least 199,000 petitions in each of the previous five fiscal years (in the first year of registration last year they reported 275,000 registrations), we fully anticipate that there will be a lottery again this year. Furthermore, with the nominal cost of registration, and the elimination of the need to fully prepare a petition prior to selection, we expect employers to be very aggressive with H-1B registrations in order to increase the chances of a foreign national being selected from the employer’s company. However, given the impact of the Covid pandemic we do expect that it will reduce the overall number of registrations and thus increase the chance of selection this year.
We ask that you notify us of your request to file all H-1B petitions as soon as possible in 2021; and, in any event, no later than March 22, 2021 so that we may file a registration in a timely manner before registration closes at noon (ET) on March 25, 2021. No new registrations will be permitted for the initial registration period after the registration window closes on March 25. In any event the sooner we know, the sooner we can evaluate the case to ensure that it satisfies the H-1B criteria and gather any necessary supporting information or documentation for the registration and H-1B petition.
With the implementation of the H-1B electronic registration system, our firm is pleased to offer a bifurcated, “Two-Step Approach” in addition to our “One-Step/Traditional Approach.” Under the bifurcated approach, for a fee, our firm will gather the necessary supporting documentation for an H-1B petition, evaluate the case to ensure that it satisfies the H-1B criteria, and prepare and submit an electronic registration for a proposed H-1B worker (Step 1). If the registration is selected, for an additional fee, BIL will prepare and file the H-1B petition within 90 days of selection (Step 2). On the other hand, under our One-Step/Traditional Approach, BIL will gather the necessary supporting documentation, evaluate the case to ensure it satisfies the H-1B criteria, submit an electronic registration for a proposed H-1B worker, and fully prepare a case for filing so it will be ready to be filed on March 31st, in order for USCIS to receive it on April 1st, in the event that the registration is selected. Of course, if the registration is not selected, the case cannot be filed.
To handle the registration period we are taking two approaches as outlined below: you may read more about BIL’s two Approaches and receive more information about the registration process from our original article when this process was first introduced in 2019, by clicking here.
Our legal team is happy to answer any questions regarding the process or which approach may be more appropriate for a given registrant. As always, being proactive will allow us to be ahead of schedule to accommodate last minute changes or delays, or to accommodate last minute new hires.
Once the initial registration period closes, and if the number of registrations exceed the quota, USCIS will conduct its reverse registration lottery. The regular-cap lottery will run first and USCIS will identify the first 65,000 selected registrations. U.S. advanced degree registrations that did not get selected will be eligible for a second master’s cap lottery for 20,000 registrants. Once a registration is submitted, we have no control over the lottery and whether a case makes it into the lottery. The process is entirely random. We will notify all clients of the status of their case and whether they made it into the lottery as soon as we have information.
By March 31st, registrants should know whether they’ve been selected into the H-1B cap for FY2021 (last year we were notified on March 28th after the lottery closed on the 20th, with the registration closing on the 25th it may be March 31st before we know a case has been selected, which may make a March 31st filing date impossible). Due to the volume of cases filed, our firm will prioritize cases for our clients who have paid to get cases fully drafted for March 31st, 2021. For our other cases, our firm will work as expeditiously as possible to file, as soon as possible, within the filing window. At this time, it is not clear whether Premium Processing will be available but it was available last year.
In the past, if accepted, the processing time for Cap cases varied widely from three to ten or more months. Given delays in processing Cap H-1Bs in recent years, coupled with past suspensions of Premium Processing, there is a potential that individuals who are authorized to work based on an F-1 OPT will run out of work authorization if the H-1B is not issued by October 1, 2021. Thus, a conservative approach may be to utilize the One-Step/Traditional Approach for these more time sensitive cases to ensure first available filing.
** This newsletter/memo is provided for informational and discussion purposes only. It does not act as a substitute for direct legal contact on an individual basis **