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Special thanks to guest contributors Alessandra Faso, John Foerster and Matthew Gorman.

In Brief

Now is the time to start preparing H-1B petitions for consideration in the 2021 H-1B lottery. As background, the demand for new H-1Bs always exceeds the limited supply. Since 2014, the quota has been filled within the first week and an H-1B lottery established. In recent years, more than 200,000 petitions were received for the 85,000 H-1B visas available.

Key takeaways

Here are a few key takeaways regarding proposed changes and the likely timing for USCIS’ H-1B Cap protocol:

  • The initial H-1B petition registration period will likely begin in early March, and will close later on in the month. We expect USCIS to issue more specific guidance in the coming weeks. For reference, last year’s registration was open from 1 March to 20 March.
  • Employers (or authorized representatives) must register using an online account. Information regarding how to register will be provided by USCIS on its website.
  • A separate registration request must be made for each individual for whom H-1B status is sought.
  • USCIS will send notices to all registrants with selected registrations who are eligible to file an H-1B Cap Petition. The petitioning employer will then have a 60-day window to submit the H-1B Petition.
  • A pending Trump-era regulation would change the “randomized” nature of the H-1B lottery and replace it with one that selects based on wage level. Under this model, higher “level” wages would receive priority over lower “level” wages. This rule is currently under review by the Biden Administration and it is not clear whether it will be invalidated or delayed.

Actions to take

While there is currently uncertainty regarding whether the new lottery selection criteria will be in effect for the upcoming H-1B Cap season, one thing is clear: all potential H-1B cap beneficiaries should be identified as early as possible to ensure participation in the electronic preregistration lottery. Now is the time to:

  • Identify the potential H-1B beneficiaries within your company.
  • Prepare job descriptions.
  • Organize wage and compensation information.
  • Collect academic documents and, where appropriate, secure translations and evaluations of education/experience.