Do You Feel Lucky Employers? There’s an H-1B Lottery A-Coming

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Do You Feel Lucky Employers? There’s an H-1B Lottery A-ComingEmployers interested in sponsoring foreign national workers for new cap-subject H-1B visas this year need to be getting ready now.

This past Friday, U.S. Citizenship and Immigration Services (USCIS) announced that the initial registration period for the upcoming FY 2022 H-1B cap season will open at noon EST on Tuesday, March 9 and run through noon EST on Thursday, March 25. During this period, employers will be allowed to register prospective H-1B beneficiaries by electronically submitting limited information about the employer and the beneficiary through a specially created USCIS account and paying a $10 registration fee.

USCIS will then conduct a lottery to select the registered beneficiaries entitled to be sponsored for one of the coveted 85,000 available H-1B slots and announce those selections by March 31. An employer whose beneficiary is picked will have until June 30, 2021, to file a full-blown H-1B petition on that beneficiary’s behalf. This process will basically track the procedures used for the first time in 2020.

What about all the new H-1B Rules issued by the Trump administration?

Shortly before President Trump left office, his administration issued two final regulations – and proposed a third – designed to significantly overhaul the H-1B visa process. The Biden administration, however, has already taken steps to ensure that those regulations will not have any impact on the upcoming H-1B cap process. And, it’s now possible that none of the Trump-era regulations will ever see the light of day.

The first H-1B regulation issued in the waning days of Trump’s presidency – entitled Modification of Registration Requirement for Petitioners Seeking to File Cap-Subject H-1B Petitions – would fundamentally alter the H-1B cap selection process by doing away with the current lottery system and selecting registrants starting at the highest wage and working down.  Critics have assailed this new rule as effectively precluding recent college graduates and other entry-level workers from utilizing the H-1B program.

The second final regulation – Strengthening Wage Protections for Temporary and Permanent Employment of Certain Aliens in the United States – would substantially increase the wage rates that employers are required to pay H-1B workers. Opponents have decried this rule as an effort by the Trump administration to effectively price H-1B employees out of the labor market.

Although both these regulations were published as final rules and, therefore, cannot simply be rescinded, the Biden administration has already taken regulatory steps of its own to delay their implementation. The effective date of the rule changing the H-1B cap selection process has now been delayed until December 31, 2021, while the effective date of the rule upping the H-1B wage rates has been pushed back to May 14, 2021. Both these Trump-era regulations are inconsistent with President Biden’s immigration policy objectives, and many experts predict they ultimately will be overturned through either legal action or additional regulatory measures.

The third rule proposed by the Trump administration – Strengthening the H-1B Nonimmigrant Classification Program – would have imposed tougher standards for H-1B employees placed at third-party worksites. The text of this rule was released several days before President Biden took office, but it was never actually published as a final regulation. As a result, this rule was withdrawn on President Biden’s first day in office, when his administration issued a memorandum that placed a freeze, pending further review, on all unpublished regulations. Given the new administration’s changed immigration priorities, this rule now has virtually no chance of being implemented.

The ultimate fate of the other two Trump-era H-1B regulations is perhaps less certain, but at least it’s clear that they will not impact the upcoming H-1B cap selection process. Employers who wish to sponsor foreign workers for the new H-1B visas can now do it with a renewed sense of security about how the process will work.

If you want to take advantage of this year’s H-1B lottery, you need to be gearing up now… because that train’s a-coming.