A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration lawyer. We serve clients in all U.S. states and overseas countries. (All information is not legal advice and is subject to change without prior notice.)

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Thursday, February 4, 2021

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

 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

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. 



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