UPDATE 2/17/2021
United States Immigration and Citizenship Services (USCIS) indicated it will open H-1B registration for FY2021 on March 9, 2021. The window will close March 25, 2021. During the registration period, petitioners can electronically file petitioner and beneficiary information through the electronic registration process.
On February 5, USCIS shared the following guidance on this year’s electronic registration:
- A confirmation number will be assigned to each registration submitted for the FY 2022 H-1B cap. This number is used solely to track registrations; registrants cannot use this number to track case status through Case Status Online.
- Prospective H-1B cap-subject petitioners or their representatives are required to use a myUSCIS online account to register each beneficiary for the selection process electronically and pay the associated $10 registration fee for each registration submitted on behalf of each beneficiary. Prospective petitioners submitting their own registrations (U.S. employers and agents, or “registrants”) will use a “registrant” account. Legal representatives may add clients to their accounts at any time, but both representatives and registrants must wait until March 9, 2021 to enter beneficiary information and submit the fee.
Additionally, the Department of Homeland Security announced a delay in the effective date of the H-1B Selection Process final rule to December 31, 2021. The rule was an 11th hour decree from the Trump Administration and would have fundamentally changed the H-1B lottery to prioritize petitions with the highest wages.
Original Post: 2/04/2021
After four years of navigating punitive immigration policies under former President Donald Trump, STEM employers and multinational corporations are wondering what changes, if any, President Joe Biden will make to the annual H-1B lottery. With only two months until non-Cap exempt H-1B petitions can be filed, here is what we know, and what is still up in the air, about the FY2022 H-1B Visa Cap Lottery.
FY 2022 H-1B Lottery – What We Know
Though President Biden suspended implementation of the Trump Administration’s 11th hour immigration rules, including delaying changes to the H-1B lottery and wages for H-1Bs, there is still a possibility those changes impact this year’s lottery. However, our expectation is that the Biden Administration will ensure that the FY2022 lottery remains unchanged.
We anticipate that within the next week or two, the USCIS will announce the H-1B CAP registration period rules and any changes. Because the USCIS is required to announce the start and end dates of the initial registration period on its website at least 30 calendar days in advance of the start date of the registration process, our expectation is that the announcement comes no later than February 16, 2021 with the USCIS to then begin the actual “registration” on or about March 18, 2021.
Last year, for FY2021, the USCIS ran the H-1B registration process between March 1, 2020 and March 20, 2020. Though the expectation is that the USCIS would follow the same procedures, they do have flexibility in this and must only run the registration for 14 days prior to April 1. This means USCIS could actually hold off until March 18 to begin the registration period.
Will FY2022 H-1B process be wage-based?
The Trump Administration had tried to implement a wage-based selection system for this lottery. However, all indications from the Biden Administration is that this will be held in abeyance beyond this year’s “lottery” or will be rescinded altogether. In either event, it should not impact FY2022’s registration and lottery system. On January 8, 2021, the Department of Homeland Security (DHS) published a final rule that replaces the current random selection process by which USCIS selects H-1B registrations for filing of H-1B cap-subject petitions. The new system will select registrations based on the highest prevailing wage level that the offered wage equals or exceeds for the relevant Standard Occupational Classification (SOC) code and Metropolitan Statistical Area of employment. The rule is currently scheduled to take effect on March 9, 2021. On January 20, 2021, the Biden Administration issued a memorandum instructing all federal agencies to consider postponing the effective date of any rule that had been published in the Federal Register but had not yet taken effect for 60 days from the date of the memorandum, until March 20, 2021. The memorandum further provides that the agency may consider extending the effective date of the regulation for more than 60 days. In order to delay the effective date of any rule, the agency must issue a rule in the Federal Register.
The Rule that created the H-1B Wage-Based Selection System sits directly in the crosshairs of this memorandum. However, the USCIS has not yet published the required Federal Register notice postponing the effective date. Thus, the effective date of the rule currently remains March 9. Additionally, there are indications that the USCIS has taken preliminary steps recently to incorporate questions pertaining to wage levels and SOC codes on both the H-1B Registration Tool online Form and Form I-129, which is used to file the H-1B Petition with the USCIS. Please note that if the effective date of the rule is postponed for 60 days or longer and implementation of the Wage-Based Selection System is delayed, the additional questions and information will not be required for the FY2022 initial registration period. Our expectation is that the Biden Administration will delay the implementation of this Rule so that it does not apply to the FY2022 registration process, but we continue to monitor any progress or developments.
If the Wage-Based Selection System is not implemented, this year’s lottery will run just as it was last year, using an electronic registration process. Registration will run from March 1-March 20, and the lottery will take place between March 21-March 31. Selected H-1B petitions can be filed after April 1. Petitions will be drawn for 20,000 Master’s Cap petitions prior to the lottery for 66,000 available slots in the Regular Cap lottery.
In a welcome relief to current and future H-1B holders, President Biden has frozen regulations from former President Trump that would have removed the work authorization of H-4 dependent spouses of H-1B visa holders.
Beyond the FY 2022 H-1B Lottery – What We Don’t Know
Former President Trump made some of his most sweeping changes to the business immigration landscape using Executive Order – from travel bans to increased adjudication of H-1B petitions. We will watch closely to see what President Biden overturns using his own Executive Order powers, and what he will hope to change as part of his massive immigration reform legislation. Specifically, we will monitor:
- Will adjudication of petitions/RFEs look different this year?
- One of the hallmarks of the Trump Administration’s “Buy American/Hire American” immigration agenda was an increase in adjudication, request for evidence filings and outright denials of petitions. With a more temperate administration in place, we expect to see decreases in RFEs and denials, but only time will tell. Our attorneys and legal analysts will continue to use rigorous preparation, review and filing protocols to ensure petitions are filed with the best chance of success.
- How will proposals from President Biden’s immigration bill will impact future lotteries?
- The Biden Administration placed a strong emphasis on the importance of skilled immigration to the United States in its proposed immigration reform legislation. Most notably, President Biden has suggested exempting advanced degree holders from the H-1B Cap. This would relieve stress on the competitive lottery, opening up H-1B petitions for the highly skilled workers in biotechnology, engineering, research, and emerging technologies.
The Biden Administration has signaled a desire to expand skilled immigration, but has also indicated it will carefully consider the impacts any expansion would have on American workers. If you have questions about how changes to the immigration landscape could impact your company, contact us to set up a complimentary consultation.
