H-1B Cap Season: Five Things to Know in 2021

November 25, 2020 Erik Prado

Update Jan. 12: The fiscal year (FY) 2022 cap season is here. Despite continuing H-1B litigation, impacts from COVID-19, and the recently implemented change instituting a wage-based selection process, Envoy, Global Immigration Associates and Corporate Immigration Partners anticipate FY 2022 cap season proceeding as normal. Please know that we are monitoring the situation closely and will provide further guidance if anything changes.

Start H-1B cap season on the right foot by brushing up on electronic registration, the lottery reversal and more 

The Fiscal Year 2022 H-1B cap season is right around the corner. This will be the second year U.S. Citizenship and Immigration Services (USCIS) will utilize the electronic registration system. While the steps in the H-1B lottery may have changed, the overall goal of hiring foreign talent to fill job vacancies hasn’t. 

For organizations starting to develop hiring plans for next year, here are five important things to know about the upcoming FY 2022 H-1B cap season.

Five key insights to help employers prepare for FY 2022 H-1B cap season 

1. H-1B electronic registration is the new normal

In late 2019, USCIS announced it was transitioning to a new electronic registration system for the FY 2021 cap. This move was arguably one of the biggest changes to the H-1B visa program in recent memory. 

Instead of submitting fully prepared H-1B cap petitions once the lottery opened as in years past, companies instead had to electronically register and pay a $10 registration fee. Under this new registration process, employers submit basic information about their organization and each requested worker during an initial registration period. In 2020, this period was from March 1 to March 20. USCIS will conduct the lottery to select the 85,000 beneficiaries for the year's cap, and sponsoring employers will be notified electronically. Following this step, employers will have an expected 90 days to prepare and submit a full H-1B visa petition for their employees. 

Human resources departments across the country had many questions about this new process, as did immigration attorneys. Adding to the uncertainty was that electronic registration started just as offices across the country moved to a remote work setting because of the COVID-19 pandemic. 

Luckily, the first year of H-1B electronic registration was a success. USCIS received enough electronic registrations to reach the FY 2021 H-1B cap, and they notified those petitioners who were selected no later than March 31, 2020. They were then able to submit their H-1B cap petitions starting on April 1, 2020. 

One important thing to keep in mind: Dates for the initial registration period and when USCIS notifies employers and petitioners may change in 2021. Be sure to check with your immigration attorney and the USCIS website.

2. Reversal of H-1B petition selection remains intact 

Before the start of the FY 2020 H-1B cap season, USCIS changed the order it selects H-1B cap petitions. Now, USCIS selects registrations for the regular cap first, then it will select registrations for the master's cap. 

3. Premium processing fees will increase 

USCIS has raised premium processing fees and expanded it to more immigration categories after a new law went into effect. That bill, H.R. 8337, now law, raises the cost of premium processing from $1,440 to $2,500 for all categories previously eligible for premium processing, including the H-1B. 

4. H-1B RFEs are still being issued 

According to the latest data from USCIS, about 34.8% of H-1B petitions received a request for evidence (RFE). This is a decline from FY 2019, when 40.2% of H-1Bs received an RFE. 

5. Keep an Eye on New H-1B Regulations*

In Oct. 2020, government agencies introduced two important regulations for the H-1B. 

The first came from the Department of Homeland Security (DHS), which published a final rule that heightened requirements for employers seeking to hire foreign nationals on H-1B status. This final rule tightens criteria for the H-1B specialty occupation visa program in a few ways, according to Ryan Bay, a Partner at Global Immigration Associates, one of Envoy’s affiliated law firms. 

According to Bay, this rule narrows the definition of a “specialty occupation” eligible for the program by mandating the candidate to possess a bachelor’s degree or foreign equivalent more specifically related to the position for which they are applying. 

Additionally, the rule requires sponsoring employers to prove that a bachelor’s degree is and always has been the minimum requirement for similar positions at their organization. Previously, employers needed only to establish that the degree was common for someone in the role—not in every instance. This higher burden requires employers to establish that they have always required a bachelor's degree in fields of study related to the role. 

This rule will only impact H-1B cases filed on or after Dec. 7, 2020. For more information this rule, be sure to read Bay’s full write up from last month

Another new rule came from the Department of Labor (DOL). The agency published a final rule that changes the way they determine the minimum wage that employers must offer foreign workers.  

According to GIA Managing Attorney Ian Love, the rule significantly increases the minimum wages that employers must offer to nonimmigrant workers on H-1B, H-1B1 and E-3 status as well as employment-based green card applicants. 

This rule is now in effect. For more insights, read Love’s deeper analysis here

Finally, DHS has also proposed a new rule to change the H-1B lottery to a wage-based selection. If this rule is finalized, DHS intends to update the current lottery-based selection process to prioritize higher paid H-1B beneficiary employees.

These are the latest things employers need to know about the upcoming H-1B cap season. But with a new president-elect and new administration waiting in the wings, some things may change between now and when the H-1B lottery opens. Envoy Global and its affiliated law firms will provide updates as they become available.

Subscribe to the Envoy Immigration Blog for continuous updates on anything related to H-1B cap season.

*Since this article was originally published, a U.S. District Court in Northern California struck down the proposed changes to the H-1B program. As of Dec. 1, 2020, the court’s decision prevents the Trump administration from tightening eligibility requirements and raising minimum salary requirements for the H-1B program. 

You can read more about the court ruling in this update from Envoy and Global Immigration Associates.

Envoy is pleased to provide you this information, which was prepared in collaboration with Sara Herbek, who is a Managing Partner at Global Immigration Associates, P.C. (www.giafirm.com), Envoy’s affiliated law firm.

Content in this publication is not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult an Envoy-affiliated attorney or another qualified professional.

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