Stay Ahead of the Curve in the FY2022 H-1B Cap Season

H-1B visa

[Article written by Benjamin Hu, Esq. as Of Counsel to the Ganey Law Group]

2021-02-12: The H-1B visa’s cap season is right around the corner, with a March 9 open date for the first governmental step in the process: registering with the U.S. Citizenship and Immigration Services. Applicants selected in the late March lottery must file their H-1B petitions by early April in order to begin work starting Oct. 1.

For the Employer: keep these filing dates in mind, to avoid missing key milestones.

  • Employer must be registered with DOL and with USCIS online. (USCIS will accept online registrations between March 9 and March 25.)
  • Employer must submit Labor Conditional Application DOL ETA Form 9035 and have it certified by DOL (10 business days).
  • If employer is subject to the H-1B cap, the USCIS will notify the employers through the online registration on or by March 31. Employers thus selected will then be able to file H-1B petition Form I-129H during the first week of April.
  • Lottery quotas: USCIS may approve up to 65,000 slots for H-1Bs generally (minimum Bachelor’s degree or equivalent experience) with an additional 20,000 slots for those who hold a U.S. Master’s degree.
  • If approved, H-1B validity starts on Oct. 1 of the same year in which it was filed. H-1B duration is typically from 1 to 3 years, and may be renewed for a total duration of 6 years maximum.
  • The H-1B temporary work permit is fully compatible with EB-2 and EB-3 permanent residency categories. An employer who can offer both temporary H-1B and permanent EB-2/3 visa solutions has an edge in attracting and retaining qualified foreign employees.

For the Employee: keep these elements in mind when discussing H-1B solutions with your employer and immigration counsel.

  • The employer must be a U.S. business which is able and willing to hire you starting from Oct. 1. They must have an HR or other officer willing to work closely with immigration counsel to support the case’s success.
  • You must meet a minimum educational requirement of a U.S. Bachelor’s degree (or an evaluated equivalent foreign degree, or evaluated equivalent work experience – typically 12 years)
  • Part-time as well as full-time work is permitted under the H-1B, but the work must be consistent. “Benching” (suspending work and pay due to insufficient business) is not permitted during H-1B.
  • If you are on F-1 student status, an approved H-1B petition automatically addresses the “gap” between the end of your F-1 or OPT period, and the Oct. 1 start date of your work. You may remain in the U.S. and continue to work as per the OPT rules.
  • If you have a spouse or child dependents, they may remain in the U.S. under H-4.
  • If you have a J-1 status or visa in your history, you may be barred from applying for an H-1B. Speak with legal counsel first to determine whether and how your J-1 may affect your application.
  • Your employer can also file EB-2 or EB-3 green card work petitions for you, which can allow you to remain in the U.S. even beyond the H-1B’s duration. However, this process should start before you complete your fifth year of H-1B.

Exceptions to the H-1B Cap Lottery:

The lottery does not apply to: job positions with higher education institutions, non-profit organizations associated with a higher education institution, and non-profit research or government organizations. Also, foreign workers who previously hold approved cap-subject H-1Bs do not need to re-submit to the lottery.

Recent Considerations Under Current Administration

The previous White House administration targeted the H-1B process for fraud prevention with several new limitations – some or all of which may be overturned by the new Biden Administration. Further considerations include:

  • Computer Programmer and similar job positions were subject to increased scrutiny.
  • Positions in lower wage levels faced increased challenges during adjudication.
  • Positions located at third-party worksites faced increased scrutiny, including requests to show sufficient work orders to sustain the foreigner’s placement there for the entire requested time (i.e. up to 3 years of proof of future work orders).
  • The Biden Administration rescinded a recent Trump-era rule increasing the required minimum wage.

Get your H-1B filed with accuracy and security, and meet the Cap Lottery deadline with confidence. Contact Us to set up a consultation.

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