Tag Archives: cap

USCIS Selects Third Round of H-1B Registrations for FY 2022

From USCIS, 11/19/2021

USCIS Conducts Third Random Selection from Previously Submitted FY 2022 H-1B Cap Registrations

We recently determined that we needed to select additional registrations to reach the fiscal year (FY) 2022 H-1B numerical allocations, including the advanced degree exemption. On Nov. 19, we selected from among previously submitted electronic registrations using a random selection process. The petition filing period based on registrations selected on Nov. 19 will begin on Nov. 22, 2021, and close on Feb. 23, 2022. Individuals with selected registrations will have their myUSCIS accounts updated to include a selection notice, which includes details about when and where to file.

In July 2021, we conducted a second random selection from among properly submitted electronic registrations for the FY 2022 H-1B numerical allocations. The petition filing period based on registrations selected in July ended on Nov. 3, 2021.

We conducted an initial selection in March 2021. The initial filing period for those with selected registrations for FY 2022 was from April 1, 2021, through June 30, 2021. Per regulation, we take into account historical data related to approvals, denials, revocations, and other relevant factors to calculate the number of registrations needed to meet the H-1B numerical allocations for a given fiscal year. Only those petitioners with selected registrations for FY 2022 are eligible to file H-1B cap-subject petitions.

An H-1B cap-subject petition must be properly filed at the correct service center and within the filing period indicated on the relevant registration selection notice. Online filing is not available for H-1B petitions. Petitioners filing H-1B petitions must do so by paper and must include a printed copy of the applicable registration selection notice with the FY 2022 H-1B cap-subject petition.

Registration selection only indicates that petitioners are eligible to file H-1B cap-subject petitions; it does not indicate that the petition will be approved. Petitioners filing H-1B cap-subject petitions, including those petitions eligible for the advanced degree exemption, must still submit evidence and establish eligibility for petition approval based on existing statutory and regulatory requirements.

For more information, visit the H-1B Cap Season page.

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USCIS Rushes to Modify H-1B Cap Registration & Selection Process Before March

[UPDATE: DELAYED UNTIL DECEMBER 31, 2021]

USCIS Rushes to Modify H-1B Cap Registration & Selection Process Before March

USCIS announced that a rule first proposed in November that modified the H-1B cap selection process will be effective prior to this year’s H-1B registration period. Despite comments submitted through December of 2020, DHS moved forward with publishing the final rule without modification. The new policy will change the selection from a random process to one based on wage levels. In the announcement, USCIS stated that the new modifications will “incentivize employers to offer higher salaries, and/or petition for higher-skilled positions, and establish a more certain path for businesses to achieve personnel needs and remain globally competitive.”

In 2020, the H-1B registration window opened on March 1 and stayed open through March 20, 2020. While no timeline has been announced for 2021, the new rule leaves employers and employees only weeks to adjust to the new selection process if it were implemented, with an effective date of March 8, 2021. There has been no USCIS guidance released on how the registration process will be operationally different than in 2020. President-Elect Biden has indicated he will sign a memo preventing “midnight” rules from taking effect immediately, so it is likely the registration rule will not be implemented for this year’s H-1B cap selection process.

Previous DOL and DHS rules attempting to increase prevailing wages were struck down by the courts last year.

Key Provisions of the Proposed Rule

While the H-1B cap registration system has historically been a random selection process, the rule would shift to a ranking of registrations based on the highest OES wage level that the proffered wage equaled or exceeded for the relevant SOC code in the area of intended employment. The top-ranked registrations would begin at OES wage level IV and proceed in descending order.

Wage Considerations

  • If the proffered wage falls below OES wage level I because the wage is based on a prevailing wage from another legitimate source (other than OES) or an independent authoritative source, USCIS will rank the registration as OES level I.
  • After the 65,000 “regular cap” selections are made, the same process would be utilized to meet the advanced-degree exemption.
  • If USCIS receives and ranks more registrations at a particular wage level than the projected number needed to meet the applicable numerical allocation, USCIS will randomly select from all registrations within that particular wage level to reach the applicable numerical limitation.
  • If the H-1B beneficiary will work in multiple locations, USCIS will rank and select the registration based on the lowest corresponding OES wage level that the proffered wage will equal or exceed.
  • Where there is no current OES prevailing wage information for the proffered position, USCIS will rank and select the registration based on the OES wage level that corresponds to the requirements of the proffered position.
  • The electronic registration form (and the H-1B petition) will be amended to require provision of the highest OES wage level that the proffered wage equals or exceeds for the relevant SOC code in the area of intended employment.

Registration & Adjudication Updates

  • The proposed rule requires that a valid registration must represent a legitimate job offer.
  • USCIS may deny the petition if it is determined that the statements on the registration or petition were inaccurate, fraudulent, or misrepresented a material fact.
  • A petition also may be denied if it is not based on a valid registration submitted by the petitioner (or its designated representative), or a successor in interest, for the beneficiary named in the petition.
  • USCIS may deny or revoke approval of a subsequent new or amended petition filed by the petitioner, or a related entity, on behalf of the same beneficiary, if USCIS determines that the filing of the new or amended petition is part of the petitioner’s attempt to unfairly decrease the proffered wage to an amount that would be equivalent to a lower wage level, after listing a higher wage level on the registration to increase the odds of selection.
  • USCIS will not deny an amended or new petition solely on the basis of a different proffered wage if that wage does not correspond to a lower OES wage level than the wage level on which the registration was based.

We will be closely monitoring the challenges to this rule in order to best advise on preparation for this year’s H-1B cap selection process.

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Planning for the H-1B Cap Registration System: Balancing Preparation Versus Procrastination

USCIS announced that the H-1B cap registration period will open on March 1 and close on March 18, 2022, pursuant to the USCIS registration rule that was first effective April 1, 2019. Employers will be required to submit a registration, along with a $10 registration fee, for each individual for which they plan to file an H-1B cap-subject petition. USCIS will then use the electronic registrations to randomly select enough registrations to meet the 85,000 available H-1B visas (65,000 regular cap and an additional 20,000 reserved specifically for master’s degree holders) and will announce the selections no later than March 31, 2022.

At first glance, this seems to be an easy way for employers to save money on legal fees by not preparing full petitions until the selection process is complete because employers would only incur legal fees for those selected in the lottery. USCIS has yet to confirm whether the filing window will begin on April 1, 2022 (as has been required in prior years), which would just be one day after their self-imposed deadline to announce the cap selections.  To best meet the needs of our clients, we have outlined several H-1B preparation options below to allow employers greater flexibility when considering their preferred risk level.

FACTORS THAT MAY AFFECT THE SELECTION OF THE H-1B PREPARATION OPTIONS

Our team has analyzed the information distributed by DHS, USCIS, and the American Immigration Lawyers Association (AILA) to identify three pathways to navigating the H-1B registration system and the subsequent filing of selected petitions. Each option has different costs and risks associated. All options include the legal team’s review of the beneficiary’s identifying documents to confirm the accuracy of the biographic information that is being entered. We would be happy to discuss what may work best for your business.

The differences in the legal fees in the options listed below are directly related to the additional expenses we would incur (such as overtime) for H-1B petitions prepared in a condensed timeframe.

REGISTRATION FEE FOR ALL OPTIONS:

USCIS FEE                   $10 FOR EACH REGISTRATION

Option One: Prepare beneficiary and petitioner information for filing as usual

Risk Level: Low

Cost: Medium (Lower legal fee overall. The legal fee is split between two stages.)

  1. Legal fees for the preparation of the H-1B petition are payable at the time the H-1B case is initiated. We will not collect the portion of the H-1B legal fee for finalizing the H-1B for submission until the H-1B petition is selected.
  2. If the H-1B petition is selected, we will then and only then collect the legal fees associated with finalizing the H-1B for submission.

Best for: Risk-averse companies that want to prepare petitions in advance of deadlines to prepare for scenarios such as system glitches, USCIS policy changes, etc. Good for companies who haven’t filed for an H-1B petition previously or when the H-1B petition is in support of high-priority candidates and want to ensure that given the adverse H-1B adjudication trends, there is ample time to prepare the best possible submissions to USCIS.

What it entails: You would submit all employee documentation, petitioner information, job description and duties, and project details (if applicable) on a normal timeline consistent with an early April filing. We will review employee qualifications and the job duties to ensure H-1B compliance, examine documents to prove work availability to troubleshoot potential problems early, and review the totality of the case to ensure that the specialty occupation and employer-employee relationship requirements can be met when the case is selected for the cap. The legal fee due prior to registration includes the LCA filing (which will be done prior to the cap selection process to ensure timely filings once selections are made). The petition will be prepared prior to cap selection and we will finalize the H-1B petition for submission upon selection.

Option Two: Collect selected documentation for attorney review, file LCA prior to cap selection

Risk Level: Medium

Cost: Medium (Regular legal fees, we will only assess a legal fee for the time spent on document review and LCA filing)

Best for: Companies that are familiar with the H-1B process and can quickly share additional documentation after cap selection.

What it entails: We will review the basic position details in order to file the LCA prior to the cap selection process. However, we will not be reviewing in-depth project documents or preparing the petition until the cap selection is made. Additional review can be requested and billed at the attorneys’ standard hourly rates.

Option Three: Collect beneficiary information and prepare registration but no H-1B petition preparation until selection

Risk Level: High

Cost: High (A higher legal fee if selected for cap to accommodate the extra resources required to prepare selected filings in an expedited fashion.)

Best for: Companies who are willing to pay the higher legal fee but will only incur legal fees for the selected registrants.

What it entails: The legal team will review the beneficiary’s biographical documents to ensure accurate registration information, but will not prepare the petition, collect additional documents, or file the Labor Certification Application (LCA) unless the petition is selected for adjudication. For new beneficiaries or new positions, we can review the basic job duties and employee education and experience to determine if the position qualifies (for the attorney consultation rate). Given the limited timeframe to prepare and then file the H-1B petition, the company risks not being able to successfully resolve any problems in a timely manner prior to the filing deadline. Problem spotting and troubleshooting are much easier months before a deadline rather than a matter of days or weeks before filing. The Labor Condition Application certification processing takes seven days. The Department of Labor site may experience some technical issues during peak use and in the past has crashed during high volumes of certification requests. We will not be able to submit the H-1B petition without the certified LCA.

Additional Considerations During Decision Making

Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs)

While the 2018 RFE guidance was rescinded, RFEs and denials continue to be a factor in H-1B adjudications. Companies should consult with an immigration attorney regarding the H-1B position and the candidate’s qualifications to determine the likelihood of an RFE or denial.

Reversal of Cap Selection to Benefit Advanced Degree Holders

The portion of the H-1B registration rule implemented in April 2019 reversed the order in which H-1B petitions were selected under the regular cap and advanced degree exemption. Under the new rule, USCIS counted all applicants towards the estimated number needed to reach the regular H-1B cap first and then selected applicants eligible for the master’s degree exemption. The switch resulted in master’s degree holders accounting for 63 percent of petitions being selected this spring, an 11 percent increase over 2018.

Some employers that have relied on bachelor’s degree holders will likely have a lower proportion of their registrations selected for adjudication, while employers concentrating on advanced degree holders will have better chances in the lottery.

Applicants with Foreign Degrees

While foreign degrees are acceptable as long as they are equivalent to U.S. degrees, USCIS requires credentials evaluations to be performed. If your foreign workers plan to utilize their foreign degrees to qualify for the regular or master’s cap, the legal team should evaluate their education and experience to determine whether a credentials evaluation is required. Once the credentials evaluation is received, the attorney should also compare the results with the H-1B position to determine the likelihood the individual qualifies for the role.

USCIS Filing Deadline

USCIS has yet to finalize the actual filing window(s) for cap cases selected for adjudication. In the last couple of years, there have been multiple filing windows for multiple selections. (USCIS failed to select enough registrations during the first round of the lottery, causing two additional selection periods in fiscal year 2021.) The filings must be early enough to allow plenty of time for RFEs and responses ahead of the October 1 start of the fiscal year, but late enough to allow some additional preparation after the cap selection is completed. (For comparison, under the current cap selection process most companies begin preparing in January for the April 1 filing deadline.)

Industry and Company-Specific Business Concerns

Challa Law Group is known for its specialized immigration strategies, customized to the business needs of our clients and constantly updated to meet the shifting immigration regulatory environment. We have filed H-1Bs for workers in healthcare, education, information technology, insurance, accounting, and other unique industries. Even within each field, each company has its own strengths and labor requirements that are important to highlight when filing petitions and applications for employees that will help you grow your business. Contact us at info@challalaw.com to discuss the challenges your company faces so we can help build your custom H-1B registration strategy.

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