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The H-1B “lottery” will soon be upon us. Here are some action steps employers seeking an H-1B visa can take now to prepare.
H-1B Lottery Overview
The number of new H-1Bs available for most employers each year is limited. To determine who can get one of these coveted visas, the U.S. Citizenship & Immigration Service (USCIS) conducts a lottery to award H-1Bs if more applications are received than the available number of visas. Certain employers and positions are exempt from this “cap,” such as non-profit institutions of higher education and their non-profit affiliates.
2020 Changes
Last year, USCIS implemented a registration procedure so that a full H-1B petition was not required to enter the lottery. The program worked fairly well, and we expect the procedure will be similar this year. Registrations were filed mid-March and USCIS completed the lottery drawing by March 31 enabling selected applicants to begin filing full petitions when the filing period opened April 1.
New Wage Rules?
USCIS published a rule on January 7, 2021, to change the H-1B award process from a random lottery to a wage-tiered system. This rule is unlikely to go into effect this year. We expect the Biden Administration to delay the effective date of “midnight regulations” (those issued at the end of a previous Administration, like this one). We also expect the rule to be litigated as it exceeds the regulations, which require that H-1Bs be chosen in a lottery system if more than the available number are received.
However, the final Department of Labor wage rule, “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States” published January 14, 2021, could affect the application process. It has been and continues to be contested in the courts introducing further uncertainty.
Although the effective date of the rule is phased over time, we recommend filing labor condition applications (LCA) now for H-1Bs to be registered rather than awaiting the selection. This will speed the process later and lock in the wages at the current level. If an application was filed last year and not chosen, your attorney can use that LCA, which is valid in most cases for three years.
What We Expect
Although we do not yet have instructions, we expect the registration and filing process to be like last year.
Registration requires an online USCIS account. If you do not have one from last year, appoint your attorney and provide them with information to register each potential H-1B beneficiary.
If the registration is selected, we expect a 90-day filing window starting April 1, 2021. H-1Bs would not become effective until October 1, 2021, the beginning of the new fiscal year.
Action Item
If you would like to register for an H-1B, please contact your attorney now. Your attorney will assess eligibility, file an LCA, collect the information needed for the registration process, and instruct you to set up an online account if you do not have one.
