Are you Ready for the H-1B CAP Filing?

The year 2020 was swallowed by COVID.  It is hard to believe that the annual H-1B CAP filing season is about to start soon. We expect the registration period to open in early March of 2021.

Last year was the first time that the new H-1B registration system was implemented.  USCIS is expected to use the same registration system again for 2021.  If so, we expect that the agency will make some announcements regarding this year's H-1B application process very soon.  

The "Wage Selection" Rule Delayed Until 12/31/2021

Trump implemented a H-1B wage selection rule, which is based on a ranking of wages offered by employers. Although the rule is scheduled to take effect in March, the Biden Administration announced it will  publish a notice in the Federal Registrar delaying the effective date of the wage selection rule until 12/31/2021 for reasons relating to implementation, training, policy review, etc.   Hence, the wage selection rule will not apply in this CAP season. 

Still, we must follow a very tight application timeline.  

Application Timeline

Timeline­1	What to Do or Expect
January – Early March	Recruit H-1B employees, consult with attorneys Evaluate the “specialty occupation” position you plan to file for, and determine job duties and requirements Gather employer/employee documents and other supporting docs
Late February	H-1B employers/attorneys can start creating USCIS accounts
Early March – Mid March	Employers recognize attorney’s representation (if any) in USCIS system Complete H-1B Registration online
Mid-March – End of March	USCIS to conduct visa lottery and send out notifications to selected applicants
April to June	Submit complete H-1B petition with LCA to USCIS
April and onward	USCIS to adjudicate H-1B petitions Respond to any Request for Evidence (RFE)
Mid-August	USCIS conducts a 2nd H-1B lottery to use up any leftover visa numbers
Mid-August – Mid-November	Submit complete H-1B petition with LCA for candidates selected in the 2nd lottery to USCIS
October and onwards	USCIS continue to adjudicate throughout this time Respond to any Request for Evidence (RFE) Change of Status Employees may start working in H-1B status upon approval Consular Processing Employees can obtain H-1B visa upon approval to enter the U.S.

1. Timeline is based on how the 2020 CAP season unfolded.

Conclusion

Although Trump's wage rule has been delayed, there are other familiar H-1B issues to deal with including "specialty occupation", "employer-employee relationship", "maintenance of status", etc.  As usual, early planning and proper legal advice are key to ensure a smooth application process.