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Time to Get Ready for H-1B Season!

The time has come to start preparing for the FY2022 H-1B season. Employers who wish to sponsor employees or potential employees for H-1B petitions should begin to get their applications in order now to be ready for the March lottery. This is the only opportunity during 2021 to apply for an H-1B visa. Approved H-1B applicants in the FY2022 cycle will be able to start work on October 1, 2021 (the first day of FY 2022).

To give context, the H-1B is a visa that allows highly educated foreign nationals to work in the United States for an initial period of three years, with potential for a subsequent three-year renewal. In recent years, USCIS has received 250,000 or more H-1B registrations to fill an 85,000 visa cap (65,000 for bachelor’s degrees; 20,000 for master’s degrees). Due to this disparity between interest and available visas, USCIS runs a lottery system to select lucky employers/employees to submit H-1B petitions.

The H-1B application process is multi-step. 

Step One – Registration

First, employers register potential hires or foreign employees during the H-1B registration period. Last year, USCIS began using an online registration system for processing the H-1B lottery. This system requires employers or their attorneys to submit H-1B registrations for the coming year though a MyUSCIS account. Registration involves basic information about the employer and the employee and costs $10. For FY2022, the registration period will run from March 9, 2021 to March 25, 2021.

Step Two – The Lottery

After the close of the registration period, USCIS runs a random lottery and selects registrants to file H-1B petitions. Last year, the winners were notified electronically by April 1st. Those who are not selected in the lottery are added to a waiting list. For FY2021, USCIS ran a second lottery in August and selected additional registrants off the waiting list because the initial lottery did not fill the H-1B cap.

Step Three – Filing the Petition

Lottery winners have 90 days to submit an H-1B petition to USCIS. The petition itself is more involved than registration and requires a Labor Condition Application, an I-129 petition, and a filing fee. If the petition is approved, the employee can start working under an H-1B visa as early as October 1st, 2021. 

New Wage Rule?

On January 8, 2021 the Department of Homeland Security issued a new rule, which would change the random lottery process to one that prioritizes H-1B applications offering higher wages. On February 8, 2021, USCIS published a final administrative rule delaying the previous  wage rule until at least December 31, 2021. The wage rule should not affect applications for FY2022

What should employers do to prepare for H-1B season?

  1.   Identify candidates for H-1B sponsorship. Often F-1 students seek H-1B status when their work authorization through Optional Practical Training (OPT) expires. In addition, employees with TN, L-1, or E-3 status may benefit from the H-1B because H-1B visa holders are permitted to have “dual intent” to pursue the permanent residency process while in temporary H-1B status.
  2.  Begin Labor Condition Application process. 
  3. Create account with MyUSCIS.
  4. Gather information from H-1B hopefuls for registration and petition.
  5. Begin preparing H-1B Petition.

Employers who need assistance with the H-1B visa process should consult with a member of the Boardman Clark Labor & Employment team as soon as possible!

Disclaimer: This information is not intended to be legal advice. Rather, it seeks to make recipients aware of certain legal developments that affect human resource issues. Recipients who want legal advice concerning a particular matter should consult with an attorney who is given a full understanding of the relevant facts pertaining to the particular matter.

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