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Volume XI, Number 107

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H-1B Cap Update: Electronic Registration Starts on March 9, 2021; Cap Selection Wage Regulation Delayed until December 31, 2021

U.S. Citizenship and Immigration Services (USCIS) recently announced updates to this year’s H-1B cap selection process. The government’s H-1B electronic registration process will open at noon EST on March 9, 2021, and will close at noon EST on March 25, 2021. All H-1B cap cases must be entered into the electronic registration system during this time period to be counted and selected under this year’s process. USCIS also announced that there will be no changes to this year’s H-1B cap selection process as the implementation of the “H-1B Cap Selection Process Final Rule” has now been delayed until December 31, 2021.

H-1B Cap Electronic Registration Process Starts on March 9, 2021

In 2020, USCIS first used an electronic registration process to obtain initial information from employers in order to conduct an electronic-based H-1B cap selection process. Instead of filing the entire H-1B petition with all filing fees during the first five business days of April and then conducting the H-1B cap selection/lottery process, USCIS changed the cap selection process to use an electronic registration system. Limited information about the employer and employee is entered into the registration system. After the registration period closes and prior to April 1, USCIS will conduct the cap selection process. This year’s electronic registration process will open on March 9 at noon EST and will close on March 25 at noon EST. Once the cap selection process has been completed by USCIS, notification will be made through the system of those cases selected. Those selected can then file the H-1B cap petition between April 1 and June 30, 2021. This process will also be the same as last year. Although not yet announced, it is likely that premium processing for H-1B cap cases will not be available at the start of the filing process and will be added later. This has been the case with premium processing over the last several years.

Please see the following for more information about this year’s (FY2022) H-1B cap selection process:

USCIS Delays Implementation of H-1B Cap Wage Selection Rule Until December 31, 2021

On January 8, 2021, USCIS published a final rule changing the H-1B cap selection process from a random selection process to a wage-level selection based process. This new rule, as detailed in our January 20, 2021 legal update, would give preference to petitions using a Level IV wage, rather than those with Level III, Level II and Level 1 wages. USCIS has now announced that it is reviewing this rule and implementation has been delayed until December 31, 2021. In making this announcement, USCIS stated the following:

“To give USCIS more time to develop, test, and implement the modifications to the H-1B registration system and selection process, DHS is delaying the effective date of this final rule from March 9, 2021, to Dec. 31, 2021. The delay will also provide more time for USCIS to train staff and perform public outreach as well as give stakeholders time to adjust to the new rule.”

USCIS also confirmed that it will use the random selection process under current rules for this year’s cap selection process beginning in March and any registration period/cap selection process before December 31, 2021. Legal challenges are also expected with this wage based H-1B cap selection rule.

Additional information from USCIS can be found at the following links:

© 2021 Faegre Drinker Biddle & Reath LLP. All Rights Reserved.National Law Review, Volume XI, Number 40
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Catherine H. Betts Employment-Based Immigration Attorney Faegre Drinker Washington, D.C.
Associate

Catherine Betts counsels corporate clients worldwide on employment-based immigration needs and strategies. She prepares and files employment-based immigrant and non-immigrant petitions for multinational corporations in the information technology, health care, manufacturing, and food and beverage sectors. She advises employers on various compliance issues, including I-9 and E-Verify obligations. Catherine is also experienced in representing clients in family-based immigrant visa petitions, adjustment of status, and naturalization and certificate of citizenship applications.

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Beth Carlson moves corporate talent across borders. She has counseled U.S. and international companies on business immigration issues for 20 years and is a recognized leader for her expertise on complex immigration matters. Beth takes a pragmatic approach to business immigration. She is creative and solution driven to explore work visa and permanent residence options that may not be readily apparent.

Beth manages immigration matters for Fortune 500 multinational companies as well as for medium- and small-sized public and private companies. She...

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Sarah R. Kilibarda Employment-Based Immigration Lawyer Faegre Drinker Minneapolis, MN
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Sarah Kilibarda has focused on solving immigration and global mobility (IGM) challenges throughout her 20-year career — first as an AmeriCorps volunteer, working with low-income immigrants in Texas, then as an immigration paralegal and attorney, focusing specifically on employment-based immigration.

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