H1B Cap Season

It’s the H1B Cap season of the year (again)!  If you need a reminder on what the “cap season” is, here is a quick summary:  The Congress has placed a limit, aka “the cap,” on the number of H1B visas that can be issued each year. There are, in fact, two H1B caps:  a regular cap of 65,000 visas and the U.S. advanced degree cap of 20,000 visas.  

In order to file a cap-subject H1B petition, an employer must first register their intent to file. In late 2019, USICS announced its transition to a new electronic registration system for H1B cap subject petitions.  Filing an H1B petition and applying for an H1B visa or a change of status, is now at least a two-step process.  First, the registration. And then, if selected in the lottery, the filing of the H1B petition.

If the noncitizen worker needs to obtain a visa in order to enter the US, then there is a third step of visa processing at a US Consulate abroad. (Consular visa processing has more or less stopped due to COVID-19 global pandemic. If this impacts your company, please contact us so we can discuss your options.) 

Starting at 12 noon EST on March 9, 2021, employers or their attorneys may begin the online registration of cap subject H1Bs.  The government registration fee is $10. One registration must be submitted for each noncitizen worker. The registration window will close at 12 noon EST on March 25th.   

Following the closing of the H1B registration period, USCIS will conduct H1B lottery. USCIS has announced that it will begin notifying employers of lottery results on March 31, 2021.  Each registration selected in the lottery will receive a selection notice. This selection notice must be included in the employer’s H1B petition submission to USCIS.  The employer and/or attorney can track the registration status and view updates for each filed H1B registration on the registration website.

Note, USCIS will deny multiple registrations submitted by or on behalf of the same employer for the same beneficiary.  This has always been the rule but identifying the improperly filed multiple registrations is now infinitely easier for USCIS. 

USCIS anticipates that employers or their counsel will be able to submit H1B petitions as soon as April 1.  Last year, the filing period was open for three (3) months, and it is expected it will be the same this year.  At this time, it is not known whether premium processing (PP) will be available for cap-subject H1B petitions.  We will monitor updates from USCIS and notify you accordingly.  Even if PP is not available at the time of petition submission, a petition upgrade to PP is likely to be possible once USCIS announces the availability of premium processing service. 

What about the new H1B rules regarding specialty occupation and wage-driven lottery selection process.  In short, neither is likely to impact this year’s H1B cap season.   The specialty occupation rule has been enjoined by a Judge and the Biden Administration has issued an order delaying the implementation of the wage-level driven selection process.  With no new rules expected to go into effect this H1B cap season, many are hopeful that we’ll see a positive change in this year’s H1B process – that is, fewer frivolous RFEs.

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