Updates on FY 2022 H-1B Registration, the Selection Process and Required Wages

Immigration Update

Date: February 16, 2021

United States Citizenship and Immigration Services (“USCIS”) has made several announcements about the timing and selection process for the FY 2022 H-1B Electronic Registration process.

The H-1B Lottery

Random or Wage-Based Selection

On February 4, 2021, USCIS confirmed delay of the Trump administration’s attempt to change the H-1B lottery selection process. Under the Trump administration, USCIS proposed a rule titled, “Modification of Registration Requirement for Petitioners Seeking To File Cap-Subject H-1B Petitions.” That rule, originally published on January 8, 2021, called to replace the current random H-1B lottery selection with a wage-based priority selection under which the roles with the highest offered wages would be selected. In announcing its delay, USCIS stated:

“The Department is delaying the rule’s 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.”

Registration Period

On February 5, 2021, USCIS announced the registration period for cap subject H-1B petitions for fiscal year 2022. Registration will open at noon (ET) on March 9, 2021 and run through noon (ET) on March 25, 2021. During this period, prospective petitioners and representatives will be able to submit their registrations. Prospective H-1B cap-subject petitioners or their representatives are required to use a myUSCIS online account to register each beneficiary and pay the associated $10 H-1B registration fee for each registration submitted.

Selection Process

USCIS intends to notify selected registrants by March 31, 2021. H-1B petitions on behalf of the selected registrants must be submitted within 90 days of selection notice. The earliest date that FY 2022 H-1B cap subject petitions may be filed is April 1, 2021.

H-1B Prevailing Wage Level Increases Delayed and Will not Impact H-1B Lottery Petitions

On January 13, 2021, the US Department of Labor (DOL) announced a final rule restructuring the prevailing wage system for the H-1B, E-3, H-1B1 and PERM Programs. The new rule would impose higher required wages. The DOL published the initial iteration of this rule as an interim final rule on October 8, 2020. Because the interim final rule went into effect immediately without a notice period, three separate federal district judges set it aside, finding that there was not sufficient cause for the agency to forego the traditional notice and comment period prior to implementation. The Trump administration’s second iteration of the rule published in January called for an effective date 60 days from the date of publication, with the increased wages in effect on July 1, 2021. On February 1, 2021, the DOL formally proposed delaying the implementation of its final rule until May 14, 2021. This delayed implementation does not affect the July 1, 2021 implementation date for the new rule, but changes may come during the additional time period to review the rule. This is consistent with the Biden administration’s January 20, 2021, memorandum outlining a “regulatory freeze” on several proposed and final rules published in the final days of the Trump administration, which have not yet taken effect. The freeze allows impacted agencies to revisit questions of fact, law, or policy for consistency with the new administration’s goals and agenda.

Employers will use the current wage levels for H-1B petitions selected under the lottery because those petitions will have to be filed before July 1, 2021.

Recommended Actions for Employers

Employers should consider filing new H-1B petitions this year even if the candidate or employee for whom they would file may not need the H-1B as early as this year. This may be especially worthwhile for employers who sponsor H-1B workers for entry-level roles. If the wage-based selection process moves ahead in future years, entry-level wage positions will likely be closed out.

Additionally, employers should consider preparing H-1B extensions further ahead than would ordinarily be considered in order to lock in the current wages. The required wage is locked in for a three-year period. Therefore, extension petitions prepared before July 1, 2021 will lock in the current required wages until July 2024. Extension petitions can be filed with USCIS no more than 180 days before the current expiration, but employers can lock in the wage before July 1, 2021 even if the petition is filed with USCIS months later.

Thompson Hine will continue to monitor these new regulations and any updates to the FY 2022 H-1B registration and selection process.

FOR MORE INFORMATION

For more information, please contact:

Sarah C. Flannery
216.566.5718
Sarah.Flannery@ThompsonHine.com

Staci M. Jenkins
513.352.6734
Staci.Jenkins@ThompsonHine.com

Hannah E. Caldwell
216.566.5908
Hannah.Caldwell@ThompsonHine.com

or any other member of our Immigration group.

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