The 2021 H-1B cap season is upon us

BY , Jason Gerrol

For each fiscal year, there are only 85,000 new (or "cap-subject") H-1Bs available: 65,000 for foreign nationals with a bachelor's degree (or equivalent education) from a U.S. or foreign college or university, and an additional 20,000 for foreign nationals with a graduate degree from a U.S. college or university.

We believe that in Fiscal Year (FY) 2022, which begins October 1, 2021, the demand for cap-subject H-1Bs will again exceed the numerical quota, necessitating a lottery. Pursuant to a January 2019 rule, U.S. Citizenship and Immigration Services (USCIS) will hold a pre-registration process that we expect to begin on March 1, 2021, but USCIS has not made an official announcement as to the dates of the initial registration periodFurthermore, under the January 2019 rule, USCIS does have the authority to suspend the pre-registration process, and revert to the old process of needing to submit a full and complete H-1B petition, but there is no indication USCIS intends to do this.

Adding further uncertainty to when the registration process will occur, on January 8, 2021, the U.S. Department of Homeland Security published a new rule that will replace the current random H-1B selection process, or "lottery," with a system that allocates H-1Bs by wage level, and will require technical updates to the registration system in order to be implemented. It is not clear if the new rule and required technical updates will be implemented in time for the FY 2022 H-1B registration process.

Under the USCIS pre-registration process, employers (or their attorneys/agents) wishing to sponsor foreign national employees for initial cap-subject H-1B status will complete a pre-registration process that requests basic information about the sponsoring employer and the sponsored employee. USCIS will impose a $10 fee per registration.

If a sufficient number of H-1B registrations are received during the initial registration period, USCIS will proceed with selecting the necessary number of registrations to meet the quota. Only if an employer's registration is selected in the lottery will a full and complete H-1B petition (with the necessary Labor Condition Application and all USCIS filing fees) need to be submitted to USCIS within 90 days of being notified of selection.

Only registrations submitted during the registration period will be considered in the H-1B lottery. It is therefore imperative that employers identify candidates for H-1B sponsorship early, and begin working with immigration counsel as soon as possible to begin the process of evaluating candidates for H-1B sponsorship.

Employers should consider the following workers for H-1B sponsorship:

  • Foreign national employees who are in F-1 student status and working pursuant to a period of Optional Practical Training (OPT) following completion of a U.S. degree program. OPT is generally limited to 12 months, although students who received a U.S. degree in a science, technology, engineering, or math (STEM) discipline may be eligible for an additional 24 months of employment authorization. Employment beyond the period of OPT is typically contingent on securing an H-1B.
  • Employees in L-1 status, whom you are sponsoring for lawful permanent residency (or will sponsor in the future), but who are unlikely to receive a "green card" within the allotted period of admission (i.e., five years if in L-1B status or seven years if in L-1A status). Your Nixon Peabody legal professional can help evaluate H-1B options for your L-1 employees.
  • Any prospective employees who have not previously been counted against the H-1B numerical limits within the past six years (e.g., with another U.S. employer), and whom you wish to employ in the United States.

In short, the H-1B nonimmigrant visa classification is for foreign national workers in "specialty occupations," meaning occupations that require the theoretical and practical application of highly specialized knowledge (generally by requiring at least a bachelor's degree, or equivalent, in a specialized field relevant to the occupation). If you have questions regarding whether or not a particular position qualifies as a "specialty occupation," or if your foreign national worker's education qualifies, please let us know.

If you are interested in employing a foreign national in the U.S., your Nixon Peabody professional can discuss with you the H-1B process further as well as other work authorization options that may be available (e.g., O-1, etc.).

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Courtney H. New


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Jason Gerrol

Of Counsel

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