Employers Seeking to Register Employees for the FY 2022 H-1B Cap: Act Now!

With the H-1B Cap Registration Period quickly approaching, employers seeking to sponsor an individual for an H-1B visa for fiscal year 2022, should act now! Since the salary-based preference system for allocating H-1B cap cases has been delayed until Dec. 31, 2021, this year’s H-1B cap season will be similar to last year’s and will consist of two steps: 1) online registration and 2) application submission. Employers will have from March 9, 2021 to March 25, 2021 to electronically register applicants prior to filing the complete H-1B petition. USCIS will conduct the lottery and notify employers if the applicant has been chosen by March 31, 2021. Thereafter, employers will have 90 days to prepare and submit the full H-1B petition on behalf of the applicant.

If you are considering filing an H-1B cap petition for an employee provide MMH with a list of potential H-1B applicants by February 19, 2021. An attorney will need to review certain information to ensure that the position offered and foreign employee are eligible for H-1B status. Please see the information below for more details about this year’s H-1B lottery.

What is the H-1B Visa? 

The H-1B is the most common temporary work visa for foreign national professionals in the U.S. To apply, one must have a U.S. job offer in a “specialty occupation,” meaning that the position itself requires at least a Bachelor’s degree in specific and related specialty to perform the duties of the position. The qualified employee must have the requisite Bachelor’s degree, or its equivalent based on foreign education, experience, or a combination thereof.

If approved, the individual may be able to start working for the company in H-1B status as early as on October 1, 2021, but sometimes later if the application is still pending review. H-1B status is approved initially for a period of 3 years and can be extended for a total of 6 years, except in cases where the employer has started the employment-based permanent residence (green card) for the employee. In those case, the H-1B can be extended indefinitely while the individual waits for their green card.

What is the H-1B Lottery & How Will It Work This Year?

Congress has set a cap on the total number of new H-1Bs that may be issued each fiscal year. The cap provides for 65,000 H-1Bs for individuals with Bachelor’s degrees (the “regular cap”) and an additional 20,000 for those with U.S. Master’s degrees (the “U.S. master’s cap.”) The annual cap does not apply to H-1Bs filed by universities and certain non-profit research institutions, and those seeking H-1B extensions or who have previously been counted towards the H-1B cap in prior years.

In previous years, USCIS typically received more applications than the number of visas available (e.g., 275,000 in 2020 and 201,000 in 2019), therefore necessitating a lottery to determine which applicants received the visa. It is not yet known how much of an impact the Covid-19 pandemic and economic recession will have on the number of employers seeking H-1B visas for employees, but it seems both likely that the demand will still exceed the supply of 85,000 available visas and also that the odds of getting selected in the lottery this year will be higher than in previous years. Please note that individuals with a U.S. Master’s degree have a greater chance of getting selected in the lottery.

As mentioned above, employers must submit an online registration for those employees it wishes to sponsor for an H-1B between March 1, 2021 and March 20, 2021. Thereafter, the USCIS will conduct the lottery and will notify employers regarding which applicants were selected by March 31, 2021. Those who are selected will be given a window of 90-days during which time they must file a complete H-1B application with the USCIS.

For Whom Should You Consider Filing an H-1B?

We recommend considering an H-1B petition on behalf of the following types of employees and/or prospective employees:

• -F-1 students with OPT or CPT work authorization (including those eligible for a 24-month STEM extension) even if they are on their first year of OPT
• -Prospective employees presently abroad
• -Prospective employees currently working on an H-1B for a cap-exempt employer (ex. a university)
• -Current/prospective employees in another status who are close to exceeding their eligible time in that status (e.g., TN, E-3, O-1, L-1, H-1B1, etc.)
• -Current/prospective employees in a status that does not allow for immigrant intent, but for whom you may want to start the green card process in the future (e.g., TN, E-3, or H-1B1)
• -Current/prospective employees working pursuant to DACA (Deferred Action for Childhood Arrivals) Employment Authorization Document (EAD)
• -Current/prospective employees working pursuant to TPS (Temporary Protected Status) Employment Authorization Document (EAD)
• -Current/prospective employees working pursuant to H-4 (dependent spouse of H-1B) or L-2 (dependent spouse of L-1) or J-2 (dependent of J-1) Employment Authorization Document (EAD) so that their work authorization is not solely beholden to their spouse’s work authorization/status

NOTE: Not all individuals with a Bachelor’s degree in a specialized field qualify for and can benefit from an H-1B and determining if any of the above categories of current/prospective employees would qualify for an H-1B is done by the attorney on a case-by-case basis.  

We understand that it may be cumbersome to keep up to date with all the current immigration changes and we are here to assist you. If you are interested in having us prepare H-1B petitions for any current or prospective employees, please contact an immigration attorney at Minsky, McCormick & Hallagan P.C..