ABC’s OF H-1Bs (THIS IS PART 1 OF AN 8 PART SERIES) H-1B FILING SEASON (FOR THE 2022 DEADLINE ON APRIL 1st) GETS INTO FULL-SWING FOR H-1B EMPLOYERS AND PROSPECTIVE H-1B EMPLOYEES.

U.S. Citizenship and Immigration Services on Dec 6, 2019, announced a requirement for employers seeking to file H-1B cap-subject petitions, including those eligible for the advanced degree exemption, to first electronically register and pay the associated $10.00 H-1B registration fee before filing a petition. USCIS will open an initial registration period for a minimum of 14 calendar days each fiscal year.

● During this initial registration period, prospective petitioners or their authorized representatives must electronically submit a separate registration naming each alien for whom they seek to file an H-1B cap-subject petition.

● If a sufficient number of registrations are received, USCIS will randomly select the number of registrations projected as needed to reach the H-1B numerical allocations after the initial registration period closes and no later than March 31, 2022. Prospective petitioners with selected registrations will be eligible to file a cap-subject petition only for the alien named in the registration.

USCIS will not consider a cap-subject petition properly filed unless it is based on a valid registration selection for the same beneficiary, and the appropriate fiscal year. Additionally, although petitioners can register multiple aliens during a single online submission, duplicate registrations for the same beneficiary in the same fiscal year will be discarded.

What does this mean for the immigration practitioners, professionals, and prospective H-1B employers and employees? To better prepare for the H-1B cap season, this article endeavors to summarize a few practice pointers that every prospective H-1B employer and employee needs to know.

Limited Numbers: Not 65,000; There Are Only 58,200 Regular H-1B Visas.

The current annual cap on the H-1B category is 65,000. However, all H-1B nonimmigrant visas are not subject to this annual cap. Up to 6,800 visas are set aside from the cap of 65,000 during each fiscal year for the H-1B1 program designed specifically for the Nationals of Chile and Singapore. Unused numbers in the H-1B1 pool are made available for H-1B use for the next fiscal year. Thus, in effect, only 58,200 H-1B visas are granted each year with the exception of the 20,000 additional H-1B visas which are reserved for individuals who have received a master’s or higher degrees from a U.S. college or university. In an upcoming article, we will discuss, in detail, whether or not every master’s degree from a U.S. academic institution qualifies an individual for the H-1B master’s cap.

Because of the limited number of H-1B visas, employers should identify individuals who would need H-1B sponsorship. This will allow sufficient time for petition preparation, including the time required to file and receive certification of the Labor Condition Application (LCA), Form ETA 9035. Thus, formulating a strategy for an H-1B petition is key to hiring an H-1B employee for the next USCIS fiscal year which begins on October 1st, 2022.

How Long Will USCIS Accept H-1B Petitions?

With the new H-1B Online registration period starting around early March, if a sufficient number of registrations are received, USCIS will randomly select the number of registrations projected as needed to reach the H-1B numerical allocations after the initial registration period closes and no later than March 31, 2021. USCIS will provide guidance on how to use the registration system and prepare registrations before opening the registration system for the initial registration period.

Refrain From Submitting Multiple H-1B Registrations For the Same Employee.

An employer may not submit more than one H-1B registration for each prospective employee during the fiscal year. This limitation also precludes an employer from filing multiple petitions for different jobs for the same employee but does not preclude related e