For H-1B visas, employers have been hoping there will be another round of selections for FY 2023, but that is not on the horizon.

USCIS has been sending non-selection notices to registrants’ online accounts. USCIS can only send non-selection notices once it has determined that enough petitions for the regular cap and the advanced degree exemption have been received.

Properly submitted registrations that did not make it will show as “Not Selected” in their accounts. Others may still show as “Submitted” but it is likely that those too will start to show as “Not Selected” in the days to come as the USCIS completes its process.

Last year, USCIS received 308,613 registrations and had three rounds of selections resulting in 131,970 selected petitions to meet the limit of 85,000. In last year’s first round, only 87,000 registrations were selected. This year, USCIS received 483,927 registrations and selected 127,000 petitions in the first round to meet the 85,000 total.

USCIS calculates the number of cases it will select based on historical data regarding the number of petitions that have been filed post-selection and the number of denials forecast. Last year, the COVID-19 pandemic was a big unknown. Now, as was predicted, USCIS seems to have a better grip on the data.

Please reach out to your Jackson Lewis attorney with any questions about the selection process and options for those not selected.

USCIS has announced that H-1B Cap registration will start on March 1, 2022, at noon (Eastern) and will continue through noon (Eastern) on March 18, 2022.

If enough registrations to fill the cap are received by March 18 (which is likely), USCIS will randomly select registrations and send selection notifications through users’ myUSCIS online accounts. The intention is to notify all account holders by March 31, 2022.

Registrations can be done only electronically through a myUSCIS online account. The associated $10 H-1B registration fee for each beneficiary also will be paid through that account.

Registrations may be accomplished by the employers themselves or their attorneys (representatives). Employers preparing their own registrations are known as “registrants.” Registrants will be able to create new myUSCIS accounts beginning at noon (Eastern) on February 21, 2022. Duplicate registrations for a prospective employee will lead to rejections, so it is important not to duplicate efforts.

Attorneys/representatives may add clients to their accounts at any time, but both attorneys and registrants must wait until March 1 to enter beneficiary information and submit the fee. As in the past, multiple beneficiaries can be entered in a single online session. Draft registrations may be drafted, stored, and edited prior to final payment and submission of each registration.

Full cap-subject H-1B petitions, including for those who are eligible for the advanced degree exemption, may only be filed for beneficiaries selected through the online registration process.

The reasons for cap cases abound. For example, many cap cases are for F-1 students who wish to change status to H-1B. Others include individuals in such visa statuses as L or TN who wish to extend their time in the United States. The time to start planning is now!

Jackson Lewis attorneys are available to assist in this year’s process and advise on strategies for selecting employees and prospective employees who are eligible for submissions.

Having instituted a new on-line registration process for Cap H-1B petitions last year, on November 2, 2020, the Department of Homeland Security (DHS) issued a notice of proposed rulemaking to replace the random selection process with a process that prioritizes H-1B petitions with the highest wage levels.

DHS sees wage levels as a proxy for skill level and is proposing this change to align with the Trump Administration’s desire to provide H-1B visas only to the “best and the brightest.” DHS plans to make this change through rulemaking even though the agency notes in the rule itself that it was previously of the opinion that basing selection prioritization on factors other than degree level, such as salary, would require legislation.

Under the  proposed rule, Modification of Registration Requirement for Petitioners Seeking To File Cap-Subject H-1B Petitions (the Modification Rule), the U.S. Citizenship and Immigration Services will prioritize the selection of cases based on the highest wage levels for the SOC Codes in the area(s) of intended employment – starting with Level IV and moving downward. Cases that use private wage surveys rather than Occupational Employment Statistics (OES) wages would be classified as Level I or below.

Wage level has not previously been a factor in the lottery selection process, including last year’s registration process where no information about the proffered position was required. The only substantive question was about whether the beneficiary held a U.S. Master’s degree or higher. If the proposed rule goes into effect, information including the wage level, the SOC code, and the area(s) of intended employment will be needed.

The Modification Rule is the third in a trio of recently announced rules that are dramatically changing the H-1B process. The first, issued by the Department of Labor, raised prevailing wages, essentially eliminating all entry-level wages for H and E-3 visas. This rule is already in effect. The second, set to go into effect in December, changes the definitions of “specialty occupation” and the “employer-employee relationship.” DHS has predicted that with these changes, one-third of H-1B petitions will be denied. Both these rules were promulgated as interim final rules and have already been challenged in court.

There will be a 31-day substantive comment period until December 2, 2020. DHS is promoting the idea that elimination of the random selection process will make it possible for petitioners to potentially improve their chances of selection by agreeing to pay higher wages to H-1B workers. However, because prioritizing by wage level will effectively preclude most entry and lower experience positions, many companies will find they are no longer able to realistically rely on H-1B employees.  It is expected that the Modification Rule, like the others in the trio, will become the subject of litigation.

Jackson Lewis attorneys will continue to follow the progress of this rule and provide updates as they become available.

Earlier today, USCIS announced it is implementing the registration process in the next H-1B lottery. H-1B employers have been awaiting confirmation of and details regarding the new registration process for H-1B cap-subject petitions.

Every “cap season,” employers prepare and file petitions subject to the annual H-1B cap in early April. Beneficiaries of petitions selected in the H-1B lottery can, upon approval of those petitions, commence employment for the sponsoring employers as of the following October 1. For the fiscal year 2021 cap, employers will undergo a new process that USCIS says “will dramatically streamline processing by reducing paperwork and data exchange, and will provide an overall cost savings to petitioning employers.”

DHS formally created the H-1B registration requirement in the final rule published on January 31, 2019, which took effect on April 1, 2019. Per the final rule published November 8, 2019, employers filing cap-subject petitions for the fiscal year 2021 cap will be required to first electronically register and pay the associated $10 H-1B registration fee. That final rule is effective December 9, 2019.

Among the announced requirements, features and steps of the H-1B cap registration process are:

  • Employers must complete a registration process requiring only basic information about the company and each beneficiary.
  • USCIS will open an initial registration period from March 1, 2020 through March 20, 2020.
  • The H-1B lottery, if needed, will then be run on the electronic registrations received.
  • Employers whose registrations are selected will be eligible to file H-1B cap-subject petitions within the prescribed timeframe.
  • USCIS will post step-by-step instructions informing registrants how to complete the online registration process along with key dates and timelines as the initial registration period nears.
  • USCIS will conduct public engagements and other outreach activities to ensure registrants’ and interested parties’ familiarity with the new registration system.
  • USCIS may determine it is necessary to continue accepting registrations, or open an additional registration period, if it does not receive enough registrations and subsequent petitions projected to reach the numerical allocations.
  • DHS will publish a notice in the Federal Register in the coming weeks to formally announce implementation of the H-1B registration system and provide additional details on the process.

We will provide further updates as USCIS announces additional details and instructions leading up to the initial registration period. We also encourage employers to consider their hiring needs and potential candidates, and gather the basic information necessary for initial registration as early as possible. As there may be “growing pains” associated with USCIS’s first-time use of this new process, it is not too early to start preparing.