COVID-19 Impacts to FY2021 H-1B Lottery

With online registration for H-1B petitions closing at noon EST on March 20, United States Citizenship and Immigration Services (USCIS) is scheduled to begin the H-1B cap lottery for FY 2021 next week, with notifications to employers expected by March 31st.

Suspension of Premium Processing

USCIS announced today that it is temporarily suspending premium processing service for FY2021 cap-subject H-1B petitions. Premium processing will resume in a two-phased approach, and USCIS will resume processing for FY2021 cap-subject H-1B petitions requesting a change of status from F-1 nonimmigrant status no later than May 27, 2020. The earliest date that USCIS will resume premium processing for all other FY2021 cap-subject H-1B petitions is June 29, 2020.

The premium processing suspension is inline with a similar suspension last year and is implemented to decrease the processing times of H-1B petitions overall. It does not impact cap-exempt petitions and extension of stay requests.

Special Considerations for H-1B Petitions During Social Distancing and Quarantine

The American Immigration Lawyers Association released the following recommendations for H-1B employers who are navigating the petition process during the COVID-19 pandemic:

What type of notice do Department of Labor (DOL) regulations require H-1B workers?

H-1B Regulations: The H-1B program is jointly regulated by USCIS and DOL. DOL regulations related to the H-1B program require the filing and certification of a Labor Condition Application (“LCA”) prior to filing the H-1B petition, and are aimed at protecting the jobs of U.S. workers by ensuring that H-1B workers are provided the same wages and benefits of similarly qualified U.S. workers. A key requirement to the DOL oversight of this program is the provision of notice to U.S. workers that an H-1B worker is being hired. The notice can be provided either through a hard-copy posting at the actual worksite(s) where the H-1B worker will be employed, or through electronic notice. The electronic notice may be on the company’s intranet or in its newsletter, or failing that, via direct e-mail to affected employees.

How Can Employers Comply with DOL Notice Requirements During a Quarantine?

In general, the Department of Labor uses a good faith compliance standard in enforcing both LCA and PERM regulations. In both contexts, regulations indicate that the notice must be visible to U.S. workers. Notices are not visible in an office where no one is working.

In the H-1B context, the most conservative approach would be to provide notice to workers electronically, either through the company’s intranet or, if it doesn’t have one, via direct email. The regulations also provide that where the company’s employees lack computer access, hard copies of the notice may be given individually to each worker. This could be done by a hard copy mailing. In such cases, a hard copy posting at empty worksite would not be necessary.

This is a tumultuous time for all, and we expect the H-1B petition process to change with developments in the COVID-19 pandemic. We will keep you updated through our website and newsletter. Contact us if you need assistance today.