How Will the New H-1B Selection Process Affect Your Company?

On Jan. 7, USCIS announced the H-1B Selection final rule, which amended the regulations governing the process by which USCIS selects H-1B registrations for the filing of H-1B cap-subject petitions.
However, on Feb. 4, DHS announced that for the upcoming H-1B cap season, USCIS will apply the current regulations (random selection) to any registration period that takes place before Dec. 31, 2021, thereby pushing the implementation of the H-1B Selection final rule.

It is early to predict if the Biden administration will intervene to prevent the H-1B Selection final rule from being implemented. For now, it is a welcome relief and will certainly reduce the uncertainty surrounding this year’s H-1B lottery.

USCIS implemented the electronic registration system last year for the FY2021 H-1B Cap Season. Employers and Attorneys were pleasantly surprised that the system worked reasonably well!
This year for the FY2022, the electronic registration system will be implemented like last year.

Employers must first complete a registration process with basic information about their company. They will then need to fill out basic information about each requested worker. Initial registration will run from March 1 through March 20, 2021. During that time, the H-1B random selection process will run. If selected, employers can then file H-1B cap-subject petitions for the fiscal 2022 cap.

What is the H-1B Visa?

Employers can seek highly skilled foreign workers to come to the United States and work. This visa is a temporary work visa that allows employees from specialty occupations to live and work in the United States. To qualify, the workers must have at least a bachelor’s degree or equivalent job in a specific field like business, accounting, mathematics or engineering The initial duration of an H-1B visa is three years. Immigration may extend this up to six years.

Filing a Petition as an Employer

Employers must submit their petitions for the pool of H-1B visa numbers. There is a statutory limit of 65,000 visa numbers available for new hires. There is a limit of 20,000 additional visa numbers for foreign professionals who graduated with a master’s degree or doctorate from a U.S. institution of higher learning. The cap is often reached quickly.

In 2020, USCIS conducted a second lottery selection without prior notices, presumably because COVID would have disrupted hiring plans. Thus, employers should be prepared for a second lottery without separate advance notice by USCIS.

What Do Employers Need to Know?

The new system has streamlined the H-1B visa application process. However, it is more competitive than ever to employ highly skilled foreign workers. Considering that the H-1B Selection final rule may come in place for the next year’s lottery, this may well be a good opportunity for employers to sponsor high-skilled foreign workers. It may be worthwhile to mention that not all high skilled positions can compete for high salaries. Researchers and Post Docs, for example, are not as highly paid as industry professionals.

Employers must first register for the annual H-1B visa lottery with USCIS. On February 5th USCIS announced that the initial registration period for the fiscal year (FY) 2022 H-1B cap will open at noon Eastern on March 9 and run through noon Eastern on March 25. During this period, prospective petitioners and representatives will be able to fill out petitioner and beneficiary information and submit their registrations. If chosen for the lottery, they must then submit a petition on Form I-129. Note that USCIS has discretionary authority to suspend the registration process, so employers should be prepared.

More information about the H-1B registration process can be found here.

An experienced San Jose H-IB visa attorney can help you through this process and ensure that you have the best chance of success. Your business and the growth of your company may hinge on your ability to obtain talented and skilled employees. However, the process to bring a foreign employee over to the United States is difficult without legal representation.

Contact a San Jose H-1B Visa Attorney Immediately

If you have questions regarding the H-1B visa process, we can help. We offer customized and unique solutions for all our business clients. Immigration affects every business in California and throughout the United States. We work with companies to bring talented and skilled workers in through the H-1B visa program.

At the Law Offices of Sweta Khandelwal, our law firm has assisted businesses, firms and corporations in the Bay Area and throughout California. Call us at (408) 542-0499 or fill out our confidential contact form for more information. We can help your business secure temporary visas for employees and their families.

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