United States Citizenship & Immigration Services (USCIS) confirmed that this year’s lottery selection process for new, cap-subject H-1B registrations will remain the same as last year’s process. The government had proposed a new process that would have ranked and selected H-1B lottery applicants based on offered wages, prioritizing the highest paid workers. This wage-based selection process is under review and has been postponed until at least the end of 2021.
The number of available new H-1B work visa approvals is capped at 65,000 per fiscal year, with an additional 20,000 slots available to foreign nationals holding advanced degrees from U.S. institutions. This fixed number of H-1Bs available each year is known as the “H-1B cap.” Because the demand for new H-1B visas exceeds the number of available H-1B spots, cap cases are chosen for processing each year during the H-1B cap lottery process.
Last year, USCIS implemented a new electronic “registration” system to streamline selection of H-1B cases for processing. Employers who would like to file an H-1B cap-subject petition must set up a USCIS account and then submit an electronic registration for each potential H-1B worker during the registration period. The initial registration requires basic information about the company and each requested worker, as well as a small USCIS processing fee. Once the registration period closes in March, USCIS will randomly select cases based on the electronic registrations, and then notify employers if their cases were selected. The current process requires employers to submit a full H-1B petition filing only for cases selected in the H-1B registration process.
This year’s H-1B registration period will be open from March 9, 2021 through March 25, 2021. USCIS will notify employers or their attorney of selected registrations by March 31, 2021. Full H-1B petitions for cases selected in the registration can be filed on or after April 1, 2021. If the petition is approved, the earliest date on which the foreign national may work in H-1B status is October 1, 2021.
Because of anticipated demand and the “cap” limit, this is the only time that cap-subject employers can apply for a new H-1B classification for employees. To ensure that H-1B cap cases are included within the random selection process, we recommend that employers make hiring decisions for foreign national workers and job applicants as soon as possible. Contact us if you would like assistance with the H-1B process or if you have questions regarding H-1B or other work visa categories.
Note that the H-1B cap does not apply to employees of (i) colleges and universities; (ii) nonprofit organizations related to or affiliated with a nonprofit college or university; or (iii) nonprofit or governmental research organizations. Also note that the H-1B cap usually applies only to employees who do not currently have H-1B classification; individuals who currently have H-1B status, whether with you or another employer, need not worry about the annual H-1B cap. However, other individuals, including those who are currently in F-1 (student) or J-1 (exchange visitor) status, may need new H-1B petitions filed on their behalf in order to transition to H-1B employment and avoid gaps in employment authorization.