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H-1B Cap FY2021 – It is that time of year again!

U.S. Citizenship and Immigration Services (USCIS) announced that it will implement the registration process in the next H-1B lottery.  Employers seeking to file H-1B cap-subject petitions for the Fiscal Year (FY) 2021 cap, including those eligible for the advanced degree exemption, must first electronically register and pay the associated $10 H-1B registration fee.  Under this new process, employers (or authorized representatives) seeking H-1B workers subject to the cap must complete a registration process that requires designated information about the company and each requested worker.   Only those with selected registrations will be eligible to file H-1B cap-subject petitions.   Selected employers will then have 90 days in which to file the respective H-1B cap cases.

As background, the H-1B category is designed for foreign professional workers holding a university degree, and it authorizes the foreign professional to work in the United States in a “specialty occupation.”  For most professional positions, the H-1B classification is the only visa category available.  The earliest H-1B employment start date will be October 1, 2020, with the numerical limitation (“cap”) on new H-1Bs for FY2021 set at 65,000. Exemptions to the H-1B cap include:  H-1B amendment/extension petitions, H-1B transfer (change of employer) petitions, and H-1B petitions filed by higher educational institutions and related non-profit entities.   The special exemption from the H-1B cap for foreign nationals who possess a master’s degree or higher from a U.S. university should continue in FY2021.  This exemption is limited to 20,000 H-1Bs per fiscal year.   Again, H-1B amendment/extension petitions are not subject to the FY cap.

USCIS has determined that if/when it receives a sufficient number of petitions to reach the “regular” cap for FY2021, as well as the “U.S. advanced degree” or “U.S. masters degree” cap for FY2021, it will run its “lottery system.”   Note that last year, the H-1B cap for the fiscal year was met as early as the first days of filing.

USCIS will only open the new required registration period from March 1, 2020 through March 20, 2020.  While USCIS indicates that the electronic registration process will “dramatically streamline processing,” USCIS has yet to address several areas.  For example, USCIS has not yet confirmed the availability of its online portal or whether or not employers and authorized representatives can access such online system before the registration period.

Accordingly, as a practical matter,  we still encourage employers to plan ahead for H-1B cap filings.  At this time, companies should alert various project managers, directors, human resources personnel and/or recruiters to identify any new foreign national employee hires (as an F-1 student visaholder or other capacity, such as TN or L-1A/L-1B or E-3) that have been made and/or may be made from now to October 1, 2020.

We will continue to provide updates regarding the FY2021 H-1B cap as we receive notice from USCIS.