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Cap-Subject H-1B Visa Petitions in Fiscal Year 2022
February 19, 2021


On Feb. 8, 2021, U.S. Citizenship and Immigration Services (USCIS) issued a final rule delaying (Delay Rule) until Dec. 31, 2021, the effective date of a final rule promulgated during the final days of the Trump Administration entitled “Modification of Registration Requirement for Petitioners Seeking To File Cap-Subject H-1B Petitions” (H-1B Registration Modification Rule). USCIS published the H-1B Registration Modification Rule at 86 Federal Register 1676 on Jan. 8, 2021. The H-1B Registration Modification Rule was to become effective March 9, 2021. The Delay Rule provides: 

The Department is delaying the rule’s [H-1B Registration Modification Rule] effective date until December 31, 2021, because USCIS will not have adequate time to complete system development, thoroughly test the modifications, train staff, and conduct public outreach needed to ensure an effective and orderly implementation of the H-1B Selection Final Rule by the time the initial registration period will be open for the upcoming fiscal year (FY) 2022 H-1B cap season. During the delay, while USCIS works through the issues associated with implementation, DHS leadership will also evaluate the January 8th rule and its associated policies, as is typical of agencies at the beginning of a new Administration. 

Comments regarding the delay of the H-1B Registration Modification Rule’s effective date will be accepted until March 10, 2021. See 86 Federal Register 8543 (Feb. 8, 2021). 

Consequently, for the Fiscal Year (FY) 2022 H-1B cap, USCIS will again utilize the H-1B registration process implemented last year. Below are USCIS’s instructions regarding H-1B registration for the FY 2022 H-1B cap:  

H-1B Electronic Registration Process 

In 2020, we implemented an electronic registration process for the H-1B cap. Prospective petitioners seeking to file H-1B cap-subject petitions, including for beneficiaries eligible for the advanced degree exemption, must first electronically register and then pay the associated $10 H-1B registration fee for each beneficiary. 

The electronic registration process has streamlined processing by reducing paperwork and data exchange, and has provided overall cost savings to employers seeking to file H-1B cap-subject petitions. 

Under this process, prospective petitioners (also known as registrants), and their authorized representatives, who are seeking authorization to employ H-1B workers subject to the cap, complete a registration process that requires only basic information about the prospective petitioner and each requested worker. We will open an initial registration period for a minimum of 14 calendar days each fiscal year. The H-1B selection process will then be run on properly submitted electronic registrations. Only those with selected registrations will be eligible to file H-1B cap-subject petitions. 

Selections will take place after the initial registration period closes, so there is no requirement to register on the day the initial registration period opens. Creating an online account is easy; please see the videos below. 

For more information about the H-1B program, visit our H-1B Specialty Occupations webpage [https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-dod-cooperative-research-and-development-project-workers-and-fashion]. 

How to Register 

In order to submit an H-1B registration, you must first create a USCIS online account [https://myaccount.uscis.gov/users/sign_up]. 

The initial registration period for FY 2022 will open at noon Eastern Time (ET) on March 9, and run through noon ET on March 25. Both representatives and registrants must wait until March 9, to create and complete H-1B registrations. 

Prospective petitioners (also known as registrants) must use a “registrant” account within myUSCIS to submit registrations. Registrants will not be able to add additional information after they select “I am an H-1B registrant” account type until the initial registration period opens. Registrants submitting their own registrations will enter their company information as part of their first H-1B registration. Registrants working with a representative will review company information that the representative enters. Please see the video [at https://youtu.be/J2itmTPvk00] for instructions about setting up registrant accounts. 

Representatives can create an account at any time by using the same kind of account already available to representatives. Representatives who already have a representative account may use that account; they do not need to create a new account. Unlike registrants, representatives enter information about their law firm or organization as part of setting up an account. Please see the video [at https://youtu.be/LnkK5PIRmx4] for instructions about setting up an attorney or representative account. 

Required Fees 

$10 for each registration. Each registration is for a single beneficiary. 

Registrants or their representative are required to pay the $10 non-refundable H-1B registration fee for each beneficiary before being eligible to submit a registration for that beneficiary for the H-1B cap. 

Important Dates 

H-1B Registration Process Timeline 

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. 

Registration Selection Notifications 

USCIS intends to notify registrants and their representatives with selected registrations via their USCIS online accounts no later than March 31, 2021. 

A registrant’s USCIS online account will show one of the following statuses for each registration: 

  • Submitted: The registration has been submitted and is eligible for selection. If the initial selection process has been completed, this registration remains eligible, unless subsequently invalidated, for selection in any subsequent selections for the fiscal year for which it was submitted.
  • Selected: Selected to file an H-1B cap petition.
  • Not Selected: Not selected – not eligible to file an H-1B cap petition based on this registration.
  • Denied: Multiple registrations were submitted by or on behalf of the same registrant for the same beneficiary. If denied as a duplicate registration, all registrations submitted by or on behalf of the same registrant for this beneficiary for the fiscal year are invalid.
  • Invalidated-Failed Payment: A registration was submitted but the payment method was declined, not reconciled, or otherwise invalid. 

H-1B cap-subject beneficiaries, including those eligible for the advanced degree exemption, must have a valid “Selected” registration notification for that specific fiscal year in order for a registrant or representative to properly file an H-1B cap-subject petition. The status of registrations that are not selected as part of any initial random selection process, and not denied or invalidated, will remain as “Submitted.” Registrants and representatives that are not selected will not be notified until after USCIS has determined that they have reached the H-1B cap for that fiscal year. 

https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-electronic-registration-process

H-1B Cap Exemptions 

Not all H-1B visa petitions are subject to the annual H-1B cap. Below is a list identifying which H-1B visa petitions are exempt from the annual H-1B cap. 

  • The petitioning U.S. employer is an institution of higher education as defined in section 101(a) of the Higher Education Act of 1965
  • The petitioning U.S. employer is a nonprofit entity related to or affiliated with an institution of higher education
  • The petitioning U.S. employer is a nonprofit research organization or a governmental research organization
  • The foreign national will be employed at a qualifying cap exempt institution, organization, or entity
  • The petitioning U.S. employer is requesting an amendment to or an extension of the foreign national national’s current H-1B visa status
  • The foreign national is a J-1 nonimmigrant physician who received a waiver based on section 214(l) of the Immigration and Nationality Act
  • The foreign national has been counted against the cap and
    • Is applying for the remaining portion of the 6-year period of admission, or
    • Is seeking an extension beyond the six-year limitation based on sections 104(c) or 106(a) of the American Competitiveness in the Twenty-First Century Act (AC21)
  • The petitioning U.S. employer is subject to the Guam-CNMI cap exemption pursuant to Public Law 110-229 

If your company wishes to register for the FY2022 H-1B cap, file an H-1B cap-exempt petition, or has questions about the H-1B visa process, contact Jacob Muklewicz at jmuklewicz@parsonsbehle.com.

 

 

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