As we get closer to the H-1B lottery selection date (at the end of March 2021), we urge employers to prepare early for H-1B registration and re-calibrate expectations moving forward especially in light of new rules designed to hinder the H-1B visa program.
2 New Rules:
There are two Final Rules published during the waning days of the Trump Administration that would place a hefty burden on employers sponsoring candidates for H-1B status. The first rule titled, “DOL Final Rule on Computation of Prevailing Wage Levels” (effective date March 15, 2021), would increase wages by roughly 28% to 34% across all occupations. Another, titled “Modification of Registration Requirement for Petitioners Seeking To File Cap-Subject H–1B Petitions” (effective date March 9, 2021) would create wage-based selection process for H-1Bs.
As concern over the new rules grew, the Biden Administration moved to postpone these “Midnight Regulations”. As of January 20, 2021, White House Chief of Staff Ron Klain issued a memo regarding review of pending regulatory actions which directs, in part, that 1) all rules pending at the Federal Register that have not been published must be immediately withdrawn and 2) agencies must “consider” postponing the effective dates for regulations that have been published, but not yet taken effect, for 60 days from the date of this memorandum. The two Final Rules may upon further agency action be postponed for until March 21, 2021. We will monitor any new agency action and provide updates via our Facebook and twitter pages.
Update as of January 29, 2021: The rule on increasing wage has been postponed to May 14, 2021. See our post here. Also, a complete revamp of the H-1B lottery is also unlikely given timing constraint. See our post here.
Registration System:
Assuming the process will be similar to last year, the H-1B registration system (an online based system) will handle the Lottery selection process. Although dates of registration have not been posted yet due to uncertainty over the new rules and how that will affect H1B registration, the dates are expected to be similar to last year’s (the first 20 days of March). Lottery results will be released sometime during late March. Once results are released, petitioners will have 90 days to file H-1B petitions for their selected Beneficiaries.
Information needed for Registration should a be similar to last year (see below). We recommend potential clients to start preparing for these items now so that we may help them register in March. Updates will be shared if registration process substantially changes.
REGISTRANT INFORMATION (Company):
- Legal name of the prospective petitioning company or organization
- The Doing Business As names of the prospective petitioning company or organization, if applicable
- Employer identification number (EIN) of the prospective petitioning company or organization
- Primary U.S. office address of the prospective petitioning company or organization
- Legal name, title, and contact information (daytime phone number and email address) of the authorized signatory
BENEFICIARY INFORMATION:
- Beneficiary’s legal name
- Beneficiary’s gender
- Does the beneficiary have a master’s or higher degree from a U.S. institution of higher education such that the beneficiary is eligible for the advanced degree exemption under INA 214(g)(5)(C) and requesting consideration under the advanced degree exemption?
- Beneficiary’s date of birth
- Beneficiary’s country of birth Beneficiary’s country of citizenship
- Beneficiary’s passport number
Petitioners are expected to register as many beneficiaries as possible to increase their chances of filing the most H-1Bs. As a result, the number of beneficiaries participating in the lottery is expected to be near record levels which may decrease the overall probability of lottery selection. Keep in mind that some beneficiaries may have multiple employers registering for them at the same time. And after results have been announced, different H-1B petitioners may be filling H-1B petitions for the same Beneficiary. Strategically, this may also go in company’s favor if Company A’s registration for a candidate does not get picked but a registration for same individual by Company B is picked and its H-1B petition is later approved. If this beneficiary is willing change employment, Company A may then file H-1B transfer to transfer the approved H-1B status and allow the beneficiary to work for them.
We are still very much in the dark regarding the registration process for this year. Due to uncertainty over the new rules, USCIS’ website system has not come online yet so there are no details at this time. Outlook is positive nevertheless given the change in administration. We will continue to provide updates via this page as well as on Facebook and Twitter pages and provide you with up-to-date information.