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Good News for H-1B Applicants: Return to Lottery Random Selection for FY 2022 on March 1, 2021

February 4, 2021

Good News for H-1B applicants! Photo by Andrea Piacquadio on Pexels.com

On Jan. 7, USCIS announced the H-1B Selection final rule, which amended the regulations governing the process by which USCIS selects H-1B registrations for the filing of H-1B cap-subject petitions.

To give USCIS more time to develop, test, and implement the modifications to the H-1B registration system and selection process, DHS is delaying the effective date of this final rule from March 9, 2021, to Dec. 31, 2021. The delay will also provide more time for USCIS to train staff and perform public outreach, as well as give stakeholders time to adjust to the new rule. Therefore, for the upcoming H-1B cap season, USCIS will apply the current regulations (random selection) to any registration period that takes place before Dec. 31, 2021. This means that USCIS will no longer select applications with the highest salary first, and the lottery system will be as it was in place for FY 2021.

HISTORY

On January 8, 2021, the Department of Homeland Security (DHS) published a final rule that replaces the current random selection process by which USCIS selects H-1B registrations for filing of H-1B cap-subject petitions. The new system will select registrations based on the highest Occupational Employment Statistics (OES) prevailing wage level that the offered wage equals or exceeds for the relevant Standard Occupational Classification (SOC) code and area(s) of intended employment. The rule is currently scheduled to take effect on March 9, 2021.

On January 20, 2021, the Biden Administration issued a memorandum instructing all federal agencies to consider postponing the effective date of any rule that had been published in the Federal Register but had not yet taken effect for 60 days from the date of the memorandum, until March 20, 2021. The memorandum further provides that the agency may consider extending the effective date of the regulation for more than 60 days. In order to delay the effective date of any rule, the agency must issue a rule in the Federal Register.

WHAT NOW?

If you think that you or an employee may be eligible for an H-1B, schedule a consultation with us today to have you case evaluated by the experienced immigration attorneys at The Grady Firm. If we determine that your case is eligible, we will collect information to register your case with USCIS on the first available date, which is March 1, 2021.

In 2020, USCIS implemented an electronic registration process for the H-1B cap. Prospective petitioners seeking to file H-1B cap-subject petitions, including for beneficiaries eligible for the advanced degree exemption, must first electronically register and then pay the associated $10 H-1B registration fee for each beneficiary.

The electronic registration process has streamlined processing by reducing paperwork and data exchange, and has provided overall cost savings to employers seeking to file H-1B cap-subject petitions by not having to pay attorney’s fees to prepare an application that may be rejected at the lottery stage.

Under this process, prospective petitioners (also known as registrants), and their authorized representatives, who are seeking authorization to employ H-1B workers subject to the cap, complete a registration process that requires only basic information about the prospective petitioner and each requested worker. The initial registration period will last for a minimum of 14 calendar days each fiscal year. The H-1B selection process will then be run on properly submitted electronic registrations. Only those with selected registrations will be eligible to file H-1B cap-subject petitions. Selections will take place after the initial registration period closes.

The Grady Firm works with dynamic employers and employees across the country to prepare successful employment-based visa and Green Card applications. In addition, we help individuals, families, employees, business owners, and investors obtain non-immigrant and immigrant visas (B-1/B2, H-1B, H-2A, H-2B, L-1A, L-1B, O-1, TN, E-2, E-3), as well and Green Cards and citizenship based on family relationships, investment, or employment. Click here to schedule a complimentary 15-minute consultation with The Grady Firm’s attorneys; call +1 (949) 798-6298; or fill out a Contact Request Form.

This article is for informational purposes only, and does not constitute legal advice or create an attorney-client relationship. This article does not make any guarantees as to the outcome of a particular matter, as each matter has its own set of circumstances and must be evaluated individually by a licensed attorney.

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