Update Post May 1, 2021
In response to the lawsuit, USCIS has agreed to accept and adjudicate H-1B cap petitions that were previously rejected last year due to having a start date that is after October 1, 2020.
Original Post March 16, 2021
This is both shockingly absurd and sad. A lawsuit was filed (a copy of the complaint is attached below) recently by multiple petitioners whose H-1B petitions were rejected due to their requesting for a start date post October 1, 2020. Last year was the first year of the new bifurcated process of accepting cap subject H-1B petitions. The first phase is the lottery selection. And the second phase involves actual filing of the petitions for those who have been selected.
There were two lottery selections. One took place in March after the initial Registration ended. And a second selection took place on or around August 14, 2020 and selected petitioners were notified immediately after. Those selected were given 90 days to file their H-1B petitions. For those who were selected on or after August 14, 2020, they had until November 17, 2020 to file.
Almost half of the allocated time for filing the petitions falls during a period after October 1, 2020. So unsurprisingly many filed their petitions after October 1, 2020, and as such, indicated a start date on their forms which was after October 1, 2020. This is exactly what these petitioners in the complaint did and their petitions got sent back. Wow!
The rejection is shocking on various levels. USCIS regularly approves cap subject H-1Bs with a start date that matches the approval date which may be after October 1st. For example, although the H-1B petitioner requests for a start date on October 1st, the approved H-1B petition may show a start date of November 1st. Why? because the petition was approved on November 1st. So it’s perfectly fine for cap-subject H-1Bs to start after October 1st. Moreover, anecdotally, many petitioners who did exactly the same thing last year of selecting a date after October 1st got their cases accepted and approved without issue. Finally, the decision to reject seems arbitrary and came only from the Vermont Service Center.
So why did Vermont reject? Maybe an blind reliance on the Q and A section from the H-1B registration page.
The above portion is copied from 2021’s Q&A but 2020’s versions (no longer available) may be similar. As one can see, USCIS’s answers to the above questions are not clear and contain obvious inconsistencies. The first answer seems to require that all petitions must contain a start date of October 1. The second answer seems to require a start date of October 1st but only for petitions whose registrations were selected during the “initial registration period” (March). Vermont took the position as characterized in the first answer. But as argued in the complaint, it also did not apply the same standard to all similarly filed petitions.
We did not encounter this issue last year as all our petitions were filed prior to October 1, 2020 including those whose registrations were selected in August. Because all were filed prior to October, we naturally requested the earliest start date possible for changing into H-1B which is October 1st. Given the on-going uncertainties, we will continue to follow closely new guidance over this start date issue. If USCIS does not issue additional clarification, we will use our best efforts to file all petitions prior to October 1, 2021 and avoid any need to back date just for the purpose of satisfying an absurd rule.