The H-1B category is an attractive employment-based option for U.S. employers seeking to hire foreign nationals in specialty occupations. Generally, in order to qualify for an H-1B visa, the employer must demonstrate to the United States Citizenship and Immigration Services (the “USCIS”) that the following requirements are met:
There is an annual numerical limit of new H-1B approvals (“H-1B cap”). Congress set the current annual H-1B cap at 65,000 (the “regular cap”) plus 20,000 for foreign nationals holding U.S. master’s or higher degrees (the “advanced degree cap”) for each fiscal year. The government’s fiscal year runs from October 1 to September 30.
Initial H-1B petitions may be approved for up to three years, with subsequent extensions for up to another three years. Typically, the H-1B worker’s total period of admission may not exceed six years, with exceptions available to some H-1B holders, including beneficiaries of pending labor certification applications or employment-based immigrant petitions.
There are some exceptions to the H-1B cap requirement. For instance, current H-1B holders who have been previously counted towards the cap are generally cap exempt. Therefore, when such H-1B holders seek to extend their status, amend terms of employment, transfer from one employer to another, or add concurrent H-1B employment, they can generally file their petitions with the USCIS any time. In addition, foreign workers seeking employment with institutions of higher education, related or affiliated nonprofit entities, nonprofit research organizations, or governmental organizations are also not subject to the annual cap.
An H-1B petition can be filed up to six months before the requested validity period. Once the H-1B cap is met, employers may only file new H-1B petitions six months before the next fiscal year begins. Since the fiscal year begins on October 1st, cap-subject H-1B petitions may be filed no earlier than the preceding April 1st (or the first business day of April).
Revised Filing Procedures for Cap-Subject Petitions
USCIS is scheduled to implement an online registration process for the fiscal year 2021 H-1B cap season, pending completed testing of the system. The online registration system requires employers seeking to file a cap-subject H-1B petition to electronically register their intended petitions with USCIS and pay a non-refundable $10 fee for each submitted H-1B registration. USCIS will not consider an H-1B cap-subject petition properly filed, unless it is based on a valid registration selection for the applicable fiscal year. USCIS said it will announce the implementation timeframe and initial registration period once a formal decision has been made.
Under the new procedure:
Foreign employees whose H-1B petitions will be approved can start their employment in the United States on October 1, 2021.
While we cannot know exactly how the new registration process will impact the H-1B cap filing season in the future, many are optimistic that it will streamline the H-1B filing process. At the same time, the new system raises potential pitfalls. In particular, given the low registration fee and the limited information needed to enter the lottery, there are concerns that some employers will register positions that will not qualify for an H-1B or for beneficiaries who will abandon job opportunity, essentially reducing the chances of other qualified beneficiaries to receive an H-1B visa for that year.
Employers are encouraged to begin working with experienced immigration counsel early to determine the best strategy for their H-1B candidates. Our experienced immigration team provides comprehensive services to address our clients’ needs regarding immigration benefits and compliance matters.