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Plan Your Strategy Now: The H-1B Cap Lottery Opens March 9
BMK Group

It is almost time to register for the H-1B cap lottery. U.S. Citizenship and Immigration Services (USCIS) announced the initial electronic registration period for FY2022 will open March 9, 2021 at noon EST and run through noon EST on March 25, 2021. Here is what to think about as you review your H-1B registration plans.   

The H-1B Program

The H-1B program allows U.S. employers to hire foreign national workers with highly specialized skills to fill positions temporarily that they struggle to fill domestically. H-1B specialty occupations include architecture, engineering, mathematics, information technology, physical sciences, social sciences, health care, education, business specialties, accounting, law, theology, and the arts. The position requires the services of an employee who has a bachelor’s degree or higher in a field related to the position. 

The program is capped at 85,000 spots per year. Currently, 20,000 of the 85,000 spots are reserved for foreign graduates of U.S. advanced degree programs (master’s and higher). Since annual H-1B applications often exceed 200,000, a lottery is used to select applications.  

Streamlined application process

Historically, prospective employers needed to submit extensive H-1B cap-subject petitions and pay hefty fees and legal fees up-front, without knowing if they would be selected in the lottery. This significant investment of time and money was a major impediment for many prospective petitioners, especially since there was no guarantee of success as petitions are chosen at random. 

Last year, USCIS streamlined the application process, adding a preliminary step. Now, before submitting the main petition, employers or their representatives first complete an electronic registration process that requires only a $10 fee per beneficiary and basic information about the petitioner and beneficiary.  If you are an employer who would like to enter one or more employees into the H-1B cap lottery, you must use a myUSCIS online account to register each beneficiary electronically between March 9 and March 25, and you will be notified by USCIS of the lottery results by March 31. At that point, you may be informed that you have been selected to file an H-1B cap petition for some or all your registrations. Registrations that were properly filed and are H-1B cap eligible but are not selected in the lottery will be marked as “submitted” and may still be chosen in the lottery later.

If your application is selected, you can file the full H-1B cap-subject petition beginning on April 1, 2021, and the window for filing the complete petitions will remain open for 90 days. This is another major improvement, as previously registrants had only five days to submit their applications. 

Strategize now for optimal results later

Since the addition of the initial registration period has significantly decreased the outlay of time and money needed to enter the lottery, petitioners who were previously hesitant to put resources into filing H-1B cap petitions because of the uncertainty of the lottery may now decide to enter due to the lower investment required at the initial stage of the registration process. In fact, Last year, the first year the preliminary registration step was used, registration filings soared to 275,000 from the petition filing count of 201,000 for the previous the year.

 It is important to engage in careful strategic planning up-front. If you are committing to enter a current or prospective employee into the H-1B cap lottery, you will want to ensure you have a legally sufficient case before you go forward. In evaluating potential beneficiary candidates, you may want to investigate whether suitable alternate avenues are applicable, because the H-1B cap process is ultimately still a lottery and there is no guarantee your registration will be chosen. If you have employees with Optional Practical Training (OPT) status who still have a couple of years of eligibility remaining, consider submitting them this year so you can avail yourself of every bite of the apple in the time they have remaining. It is also important to consider that, while we know what to expect of this year’s lottery, it is unclear how it will change in the future. President Biden has indicated he is interested in reforming the H-1B program.  

Wage Selection Rule not in effect this year

A new rule changing the H-1B selection process was passed in the waning days of the Trump administration. However, USCIS announced earlier this month that the effective date of the so-called H-1B Wage Selection Final Rule will be delayed until December 31, 2021 and that the random selection process that is currently in place applies for the FY2022 cap season. If the new rule were to be implemented in the future, it would give preference in the lottery to positions at higher wage levels. However, it is unknown if this change will come to fruition.   

That new rule was originally scheduled to take effect March 9, 2021, but it was delayed for several reasons. USCIS did not have adequate time to implement the new process in time for H-1B cap season, and there have been challenges to the legality of the wage-based selection system. In announcing the delay, USCIS stated that, during the delayed effective period, Department of Homeland Security leadership will evaluate the rule and its associated policies “as is typical of agencies at the beginning of a new administration.”

Barst Mukamal & Kleiner’s immigration lawyers provide comprehensive immigration law services. If you have questions concerning the H-1B cap registration and correlating case strategies, we encourage you to contact a Barst attorney as soon as possible. If you have questions or would like to set up a consultation, please visit https://barstlaw.com/contact-us/

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