The new USCIS electronic registration process for the fiscal year 2022 H-1B cap-subject petitions will be open from March 9 to 25, 2021.
Employers who do not already have the relevant account from last year’s registrations will need to qualify the company first. Starting on March 9 and no later than March 25, 2021, employers are required to register each prospective new H-1B employee and pay a non-refundable $10-per-person registration fee.
After March 25, the USCIS will run a random selection process on the registrations received and will notify petitioners whose registrations were selected. No notice will be sent to registrations not selected.
For each selected registration, the company will then have up to 90 days to file the full petition with all supporting documents and pay all of the usual filing fees.
To recap, the important dates in 2021 are:
March 9: H-1B registration period opens at noon ET.
March 25: H-1B registration period closes at noon ET.
March 31: Date by which USCIS intends to notify selected registrants.
April 1: The earliest date that FY 2022 H-1B cap-subject petitions may be filed.
October 1: The earliest date that the approved worker can begin employment under H-1B status.
Please contact your Dentons lawyer now to ensure that all of your H-1B registrations are properly prepared and timely submitted. It is important to evaluate eligibility for each registration.
DHS and DOL Rules Alternating the H-1B Process and Prevailing Wage Levels
The new Biden Administration and federal court decisions have made it clear that several restrictive new rules announced by the DHS and DOL in the twilight hours of the Trump Administration will not take effect. Those anti-business rules would have altered the H-1B process and imposed substantially higher than normal wage requirements. Some of the rules were improperly issued in violation of US law, while others were inconsistent with long established agency policies and procedures that implemented the intent of Congress. It is now clear that these proposed changes will not affect employers or workers, at least this year and most likely not in the future.
For example, the DOL issued a final rule on January 14, 2021, that would have changed the way prevailing wages are calculated. The proposed change did not have a legal or factual basis and was a manipulation of a long established DOL system just to achieve the Trump Administration’s restrictive immigration agenda. The change would have forced employers to dramatically increase compensation to foreign workers resulting in significant increases. The four wage tiers that were set at the 17th, 34th, 50th, and 67th percentiles would have increased to the 35th, 62nd, 78th, and 90th percentiles.
This rule was set to take effect on March 15, 2021, in time for the upcoming new H-1B filings. On February 1, 2021, the DOL decided to delay the effective date from March 15 to May 14, 2021. That gives employers a chance to file new H-1B petitions under the old, well-established rules for now at least.
There remains, of course, the threat of the new wage tiers coming into effect thereafter. The legally required comment period is now open and until February 16, 2021. Employers interested in working with Dentons to have their voice heard regarding this draconian new rule are urged to contact us.
In addition, the DHS published a final rule on January 8, 2021, that would change the long-established random selection process already in place to a wage-based selection process that would give priority to the most highly compensated workers.
The result is that high paying jobs are more likely to be selected. See Dentons’ analysis at https://www.globalmobilityreview.com/proposed-rule-to-create-wage-based-selection-system-for-h-1b-cap-subject-petitions/. This rule was set to take effect on March 9, 2021.
On February 8, 2021, the DHS proposed to delay the effective date from March 9 to December 31, 2021. The stated explanation is that it is impractical for the USCIS to update its current system to implement for the FY2022 registration.
This change would detrimentally impact hospitals, schools, and other employers who offer H-1B pay above the average, but not at the highest levels. The most likely winners would seem to be employers of bankers, lawyers and other of the most highly paid workers.
This change would dramatically change the ability of US employers to compete for the well educated professionals who have helped America succeed as an innovation leader. It would drive job creation abroad as employers outsource or establish offices in more competitive and business friendly countries.
Employers who wish to work with Dentons to submit comments re this rule are encouraged to do so now. Comments are being accepted by DHS until March 10, 2021.
The good news is that as a result of the delayed effective dates, employers will not see any process changes in this year’s cap-subject H-1B selection process for at least the next few months. The old prevailing wages will continue to apply. Employers are encouraged to file the Labor Condition Application before May 14, 2021 to ensure that the lower wage levels apply.
Dentons will continue to monitor this issue. Please contact your Dentons lawyer if you have any questions.