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2021/2022 H-1B Cap Season Approaches

on Friday, 8 January 2021 in Labor & Employment Law Update: Sarah M. Huyck, Editor

While we are still waiting for guidance from the USCIS on this year’s cap season, employers who wish to register for an opportunity to obtain an H-1B visa under the 2021/22 annual quota (or cap) should anticipate registrations to be filed this March.  If you are interested in sponsoring H-1B nonimmigrant visa status for a current or future employee, please contact us right away so we can ensure that you are prepared for the upcoming cap season.  

As background, there are a limited number of H-1B visas available each fiscal year under federal regulation, with each year’s quota becoming available April 1st for employment commencing October 1st.  Last winter, the United States Citizenship and Immigration Services (USCIS) implemented a new online lottery registration requirement for the 2020-2021 H-1B cap season.  The purpose of the new registration system was to allow the USCIS to select those who will receive H-1B visas under the annual cap using only basic employer and employee/beneficiary information for each potential H-1B beneficiary, rather than requiring full petition filings.  Employers seeking to file H-1B cap cases were required to register online in late February in order to enter the H-1B lottery by establishing up an account in the myUSCIS system that was later tied to a registration account, which could be created and maintained by legal counsel.  On March 1st, the registration webpage opened and basic information was submitted on behalf of and reviewed and approved by employers, then a $10 non-refundable registration fee was due for each H-1B cap registration.  The registration period closed on March 20th; and, the USCIS ran an electronic selection process on all submitted registrations (the “lottery”) soon thereafter. 

The lottery process went amazingly smoothly, with the first round of notifications issued in April and the first round of petition flings due in June.  Those not selected remained on a waiting list until the USCIS determined that not all cap numbers would be used.  A second selection process took place in August, with the second round of petitions due in November.  Considering how well the process appeared to have worked, everyone anticipated a return to the same system for 2021.  However, as it was, after all, 2020, complications emerged in the form of a proposed regulation that changes the basis on which the visas are allocated.  

In the past, the selection of those who would receive an H-1B visa under the cap was a completely blind process, with no factor specific to the employer, the employee, the position, or the location involved.  It was a truly random selection process.  This fall, the Department of Homeland Security proposed a new regulation that would replace the random selection with a wage-level-based allocation process.  H-1B visas would be allocated based on the highest prevailing wage level that salary offered for the position equals or exceeds, starting with level four, and descending down to level one.  This would prefer positions offering a high salary, which are generally not the entry level positions which are those most commonly seeking H-1B visas under the cap.  

The comment period for the proposed regulation ended January 4th and DHS has indicated that the new regulation will be published this week.  While DHS wishes to have the new selection system in place for this year’s cap season, it does not appear that the regulation will be published in time.  However, if it is timely, the new selection process will require changes to the registration process, which will need to be in place by March 1st.  As of yet, the new administration has not expressed any interest in adopting the salary-based selection process; so, it is unclear what impact if any the new regulation may have on this year’s lottery.  The hope is that this year’s lottery will be conducted randomly, with any changes delayed to 2022.  However, as soon as DHS provides any guidance as to how the selection process will be conducted, we will provide an update.    

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