In 2020, the H-1B Cap changed significantly, moving to a registration and selection system which not only extended the process throughout the year but also fundamentally altered how the program works. For the past few months, it has been uncertain whether this year would entail even more changes, including the proposal of a wage-based system. However, in light of recent USCIS announcements, we can now report on what to expect.

First, the H-1B Cap will remain a lottery-based system this year, as USCIS will not have time to implement the wage-based system until next year at the earliest. Next, the registration and selection dates have now been announced, with a registration period from March 9 – 25, 2021. Initial selections will be announced on March 31, 2021, with a filing period from April 1 – June 30, 2021 to file the corresponding H-1B petitions.

As we prepare for the upcoming FY 2022 H-1B Cap, it is worth revisiting what we learned last year by examining the timing, trends, and key takeaways from last year’s H-1B Cap, outlined below:

Timing

Since this year’s process will remain the same and entail a registration and selection system, it is important to be aware of some crucial timing considerations. As mentioned, the H-1B registration period begins in one month, on March 9. As such, it is important to start identifying the candidates you wish to register now and collecting the required information. The MyEsq portal is currently accepting registrations, so we strongly encourage our clients to go ahead and register any already identified candidates.

During the registration period, ILBSG attorneys will submit the registrations on the USCIS website. This process is two-fold: The H-1B employer must create an H-1B registrant account (not an H-1B petitioner account) and the attorney has a separate account. The ILBSG attorney will enter all the details for each H-1B candidate in the attorney account. Next, the ILBSG attorney will send the H-1B employer a one-time passcode, which the employer will then use to login to their registrant account and confirm ILBSG’s representation.  Once the registrations are input by the attorney, the H-1B petitioner will review and sign from their side. Only after authentication and signature by the H-1B employer can the attorney submit the registrations to USCIS. As such, it is critical that from March 9-25, H-1B employers carefully monitor all emails and communications from ILBSG, to ensure a seamless process.

Following the registration period, USCIS will post the selection notices in the ILBSG attorney’s account and we will notify H-1B employers which candidates were selected. This is expected to take place on March 31, 2021. If selected, H-1B employers will then have 90 days to file an H-1B petition, until around the end of June. Notably, in order to register, you do not need to have filed an LCA, confirmed an end client project, or submit any documentation. What this means is if you have identified a resource you want to employ, but do not yet have a project confirmed, you can still register them in the H-1B Cap. If selected, you will then have 90 days to find and confirm a project before filing the H-1B petition.

Further, in 2020, we saw a second round of selection notices in August, which provided H-1B employers until November to file an H-1B petition. This means there is a possibility if you register a candidate, you may not need to confirm a project for several months, depending on which selection round they are chosen in. This is important because many H-1B employers have been reluctant in the past to file in the H-1B Cap for candidates working on short-term projects, since there was a high likelihood the project would end before approval. Now you can register in the H-1B Cap without these concerns, since you do not have to identify a project until you file the H-1B petition which could be 3-6 months later.

Since we do not know what next year will look like or if the modified wage-based system will be implemented, ILBSG encourages its clients to take advantage of this year’s H-1B Cap to the full extent possible, taking future staffing needs into consideration and planning ahead for the next few years.

Trends

Following the ITServe lawsuit, the H-1B landscape changed dramatically. This lawsuit struck down both the 2010 and 2018 Policy Memorandums, which had long been used to routinely deny H-1B petitions for third part client site projects. USCIS can no longer require H-1B petitioners to submit end client letters, contracts, or SOWs, although we strongly suggest these documents be included when possible. As a result, ILBSG is pleased to announce that one of the major trends from last year was an unprecedented number of straight approvals without any Request for Evidence (RFE). As you prepare for the upcoming H-1B Cap, this is something to bear in mind. While this process has been cumbersome in the past and almost every case received a complex RFE, that is not the case for the time being. Not only did we see significant decreases in RFEs, we also saw denial rates fall to the lowest they have been in years.

Pursuant to the ITServe case, USCIS can no longer issue shortened approvals unless a separate notice is issued explaining why the period was abbreviated. As a result, the other trend we saw was an increase in 3-year approvals. Since SOWs are no longer required (whereas their omission used to result in an almost automatic denial), many of our clients have benefitted from not submitting them at all. Since the SOW was routinely used by USCIS as a justification for shortening the approval, having it no longer be a requirement has significantly benefitted H-1B employers and employees alike.

In the wake of the ITServe lawsuit, DHS sought to reinstate restrictions on H-1B visas through an interim final rule which would impose restrictive definitions of specialty occupation and employer-employee relationships, as well as limit H-1B approvals for client projects to one year. However, in December, a U.S. District Court struck down the rule. This means that, for now, H-1B petitions are still benefitting from the ITServe holding. While it remains possible another policy memorandum or final rule could be published imposing some of these requirements again, for now H-1B employer enjoy the least restrictive policies we have seen in some time.

Takeaways

For now, the H-1B Cap remains a random lottery giving everyone an equal chance. While we hope to see it remain this way, a wage-based rule has been published and goes into effect at the end of this year. While the Biden Administration may work with DHS to eventually modify or even withdraw this rule, only time will tell.

As such, ILBSG encourages it clients to take full advantage of the current H-1B landscape, which is presently unhindered by the restrictive policies we saw in the past few years. Since a wage-based system and other changes could be imposed as early as next year, now is the time to file in the H-1B Cap. We are experiencing unprecedented rates of straight approvals, the lowest incidence of RFEs we have seen in years, and plummeting denial rates.

If you want to file an H-1B Cap petition, now is the time.  Contact an ILBSG attorney today to get started and get the right advice.

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