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It’s H-1B Season—Are You Ready?‎

February 11, 2021

Overview

U.S. Citizenship and Immigration Service (“USCIS”) announced on February 5, 2021, that this year’s annual application period for the FY 2022 H-1B program will run from March 9, 2021, through March 25, 2021. Continuing the new electronic registration process that USCIS implemented for the first time last year, employers seeking new H-1B visas must register electronically with USCIS during the 16-day window. USCIS will then review all registrations submitted. If demand exceeds supply as in years past, USCIS will conduct a random lottery. Employers whose application(s) are selected should be notified by March 31st.

The H-1B visa is the most commonly used immigration solution for companies seeking to hire foreign nationals for professional and specialty occupations. Unfortunately, due to an arbitrary cap imposed by Congress on the number of new H-1B visas available every year, demand normally exceeds supply. Congress only makes 65,000 new H-1B visas available per year, along with another 20,000 reserved for holders of U.S. earned master’s degrees. For most of the last decade, there were two to four times more H-1B applications submitted than visas available.

Despite the current state of the U.S. economy, there continues to be high demand for H-1B visas. Last year was the first time that USCIS utilized an electronic registration rather than requiring physical filing of petitions on April 1 as in years past. It was also the first time in more than a decade that all of the combined 85,000 available visas were not used up during the initial filing window. While difficult to predict, it is possible that employers will again register in smaller numbers than in years past and that USCIS will extend the registration period as it did last year. However, it is also possible that more than 85,000 applications will be submitted during the initial 16-day registration period. Employers should therefore plan to file as early as possible once registration is open and by no later than March 25, 2021, to increase their chances of success.

The H-1B application process involves multiple federal agencies and deadlines. Employers are urged to begin the process as early as possible. As a preliminary matter, employers are required to submit and obtain certification of a Labor Condition Application (“LCA”) with the U.S. Department of Labor before submitting an H-1B petition to USCIS. That process alone can take weeks to complete and should be started as early as possible to avoid critical delays. Employers should be preparing now for the March registration period.

Schwabe’s team of immigration professionals have extensive experience with all manner of employment-based immigration visas, especially the H-1B. Please contact Bradley Maier for questions or further information.

This does not constitute legal advice and you should consult with an attorney as to how this ruling applies to your business.

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