One thing to be said about the former Trump Administration is that change was constant. That was especially true in the context of immigration. Although the outgoing Administration sought to have influence over the FY 2022 H-1B season by implementing a wage-based selection process through last-minute rule changes, the Department of Homeland Security (DHS) recently announced this policy will be delayed until at least December 31, 2021. Accordingly, the traditional lottery process will remain in place, assuming U.S. Citizenship and Immigration Services (USCIS) receives more applications than are permitted by its annual numerical cap—which is expected to happen.
H-1B status is an employment-based temporary visa category designed for highly educated foreign professionals. H-1B status must be petitioned for by a sponsoring employer through an offer of employment in a “specialty occupation”. A specialty occupation is a position that requires a U.S. bachelor’s degree (or the equivalent of such degree through foreign education and/or work experience). Moreover, the degree(s) and/or relevant work experience must be related to the offered position.
H-1B status can be granted for a period of up to six (6) years, and possibly extended beyond the six (6) year maximum, depending on the candidates’ country of birth and other important factors. The H-1B visa category is well known and heavily debated across immigration channels due to the major benefits it provides, such as permitting dual intent (allowing the foreign national to possess temporary work status while also pursuing permanent residency). However, H-1B status has become progressively challenging to obtain due to the increased number of lottery submissions and stricter adjudicatory standards.
Each year, a statutory cap of 65,000 H-1Bs can be awarded. There are an additional 20,000 H-1Bs eligible to cap applicants who possess a U.S. master’s or doctoral degree. Thus, a total of 85,000 ‘new’ cap-subject H-1Bs can be granted annually. Typically, the number of applicants far exceeds the 85,000 eligible, therefore leading to the randomized selection process of the H-1B lottery. In years past, USCIS would require all H-1B cap applicants to physically mail their H-1B petition to USCIS during the first week of April. In some years, this led to hundreds of thousands of petitions being delivered to USCIS over five (5) business days, resulting in a large and unnecessary influx of intake for the USCIS. Once the cases were received, USCIS would conduct its lottery and the non-selected cases were then mailed back to the petitioner — consequently, upwards of 100,000+ cases would be returned without any further consideration. Beginning in 2020, USCIS modernized the application process by implementing a new electronic registration process requiring employers to initially “register” any H-1B candidates during the registration period by providing basic information about the candidate and the position being offered. Now, once the registration period closes, USCIS will conduct the lottery and notify applicants of their selection status.
H-1B season is the time of year when immigration practitioners coordinate with their clients (employers and employees) to prepare H-1B registrations and applications. Typically, this process will begin shortly after the new calendar year. USCIS recently announced that the registration period for the FY 2022 season will open at noon EST on March 9th. It will remain open until noon EST on March 25th. Only applicants who timely register will be considered in the lottery. USCIS has indicated that they expect to notify applicants selected in the initial lottery by March 31st. Once an applicant has been notified of their selection in the lottery, they will have a 90-day window to submit their full H-1B application with USCIS. April 1st will be the earliest date on which USCIS will accept FY 2022 lottery petitions, meaning all initially selected cases must be filed by June 30th. It is also important to remember that although cap-subject H-1B applications can be submitted as early as April, the first day an employee can begin working in their newly approved H-1B status is October 1st of that fiscal year.
In the FY 2021 H-1B lottery season, USCIS conducted a second lottery in August where additional registrants were selected. Once chosen, applicants were again provided with a 90-day window to submit their full H-1B application. This second group of selections was made because the USCIS had not yet awarded its regulatory cap of 85,000 H-1Bs. We cannot yet predict whether this second lottery will happen again this year, but it is possible.
On January 14, 2021, the Department of Labor reissued a final rule seeking to increase wage levels for H-1B workers, along with other visa categories and employment-based green card applicants. This rule was the latest iteration of an interim rule first introduced in October 2020 that was later struck down by a federal district court. The January 14th revised rule is set to take effect in March, although the wage levels will not increase until July 2021. The proposed wage level structure includes a phased transition period, but nonetheless involves dramatic hikes to current wage levels.
It is yet to be determined whether the Biden Administration will further delay or restrict enforcement of these rule changes, should these rules go into effect, they underscore the importance of filing the Labor Condition Application, a fundamental aspect of every H-1B, for all H-1B cap cases as early as possible.
While we cannot be certain that the decision by DHS to delay the shift to a wage-based selection process was the result of the change in Administration, it is probable this was a factor. This anticipated rule change was heavily scrutinized because if implemented, would only reward employers who offered the highest salaries to H-1B candidates. The timing of this decision was also critical. The announcement to delay the rule was made in early February, providing employers, H-1B candidates, and immigration practitioners with ample time to strategize and continue preparing applications as they otherwise normally would.
Although it is likely too early to predict what immigration policies will derive from the Biden Administration, we are already beginning to hear much more welcoming rhetoric surrounding immigration and immigrants, and I am hopeful we will see more stable and favorable immigration policy being rolled out over the next several years.
If you have specific questions about the H-1B process or are considering sponsoring a candidate in the FY 2022 lottery and would like assistance, please feel free to reach out to BrownWinick's Employment group.