It is that time of year!  That is, it is time to get started on H-1B petitions for the FY2022 H-1B quota—new H-1B cases to be filed starting in April 2021. 

As this process involves strict deadlines, please review the below carefully.  Please provide the names and email addresses of your initial list of candidates no later than February 1, 2021, so that we can start reaching out and requesting documents.  If you have previously provided names, or have candidates who were not selected last year, we will follow up with a list of the names we have collected so far.   

The H-1B lottery processed changed substantially last year, and there remains significant uncertainty regarding this year’s lottery.  Therefore, please review the below closely.   

Timeline

Under the electronic registration program, introduced last year, the H-1B lottery process is as follows: 

• USCIS will require electronic registration for those who wish to be considered in the H-1B lottery.  The registration will request basic employer information as well as minimal information about each candidate.  If a recently published change in the lottery system impacts this year’s lottery (please see below), the registration may also require information regarding the proffered wage. 
  • Attorneys may submit these registrations on behalf of clients.  Attorney submission involves an electronic “handshake” process with a designated employer contact. 
  • Last year, this registration period ran from March 1-20, 2020.  As of January 12, 2021, USCIS has not yet announced the registration period for this year. 
  • USCIS is required to formally announce the start of the registration period at least 30 days in advance. 
• After the registration period, assuming greater numbers registered than visa numbers available, USCIS will conduct a lottery.  
• USCIS will update employers and attorneys regarding selection before April 1, 2021. 
  • Last year, updates were provided on Saturday, March 28, 2020.   
• Only those that are selected in the lottery will be allowed to submit Petitions. 
• If selected, employers will provide employers with a minimum 90-day window to file an H-1B petition.  The first date that USCIS will accept petitions is on April 1. 
• Those that are not selected will be kept in reserve, in case more numbers become available.
  • Last year, USCIS conducted an additional round of selections on August 14, 2020.  These cases could be filed between August 17, 2020 – November 16, 2020. 
  • USCIS has stated that it would confirm non-selection by the end of the government’s fiscal year (September 30).  However, in 2020, USCIS did not provide final confirmation of non-selection. 
• USCIS may re-open registration at any time, without notice.
• USCIS may suspend registration and revert to its prior system of requiring full petitions from all those who wish to be considered, at any time. 

Potential Changes to the Lottery – Wage-Based System

On January 8, 2021, the government published new regulations impacting the H-1B lottery due to take effect on March 9, 2021.  The new regulations would require USCIS to prioritize the lottery based on the proffered wage for the position.  In light of the new incoming presidential administration and the possibility of litigation, it is possible that this may not impact this year’s lottery.  MT LLP is monitoring this closely and will adjust strategy as necessary. 

MT LLP Processing Deadlines

We realize that you will continue to recruit over the next few weeks, however, please keep in mind the following deadlines so that we may manage the anticipated volume –

DEADLINES FOR INITIATING H-1B LOTTERY REGISTRATION CASES

Cases initiated on or before February 22, 2021: No rush surcharge will apply.

Cases initiated on February 23, 2021 – March 4, 2021: We will bill a $300 rush surcharge per registration. 

Cases initiated on or after March 5, 2021: We will bill a $500 rush surcharge per registration.  Please note that it may not be possible to fully assess and timely register cases initiated within 1 week of the registration deadline (not yet announced by USCIS). 

Duplicate Registration Warning

CLIENTS SHOULD NOT REGISTER CANDIDATES ON THEIR OWN.  Legal assessment of the merits of the case remains critical, especially in light of potential changes to the lottery this year, and because USCIS may suspend registration at any point.  USCIS has indicated that it will monitor whether registrations selected in the lottery are used to file a petition; registrations that do not lead to filings if selected may impact an employer’s ability to participate in the registration process in the future.  In addition, duplicate registrations for a single beneficiary by one company will have the serious consequence of invalidating all registrations for that beneficiary.

Action Items

Early preparation and planning remain critical in the H-1B lottery process.  Over the course of the next several months, we are anticipating that we will assess and conduct the initial preparatory steps for hundreds of FY 2022 H-1B cases.  We already have a long list of cases from those of you who have been sending us names throughout the year.  Therefore, please start collecting and providing the names and email addresses of potential candidates now, so that we can reach out to collect candidates’ documentation ASAP.

For those of you who have provided names throughout the year, or have candidates who were not selected in last year’s lottery, we will follow up to provide you with the list we have collected thus far.