March 31, 2021
LawQuest US Immigration Alert | H-1B Cap Lottery for FY 2022 Completed & the NIV Travel Ban Set to Lapse on March 31, 2021
H-1B Cap Lottery for FY 2022 Completed & the NIV Travel Ban Set to Lapse on March 31, 2021
USCIS Completes Cap Lottery
On March 30, 2021, the U.S. Citizenship and Immigration Services (USCIS) announced that it had completed the lottery and had selected H-1B registrations for FY 2022. We have anecdotally learnt that several petitioners and attorneys have seen a significantly reduced selection at 20% of the registrations they submitted and a substantially low selection rate in the Master’s cap exemption. We are working with our clients to determine how they have fared and will be happy to answer any questions that you may have with regard to this.
More specifically, the USCIS announced that:
- It received more electronic H-1B cap registrations than available H-1B numbers under the quota of 85,000 new H-1B filings, necessitating a lottery;
- It has completed a random selection process from the properly filed registration submissions; and
- It has completed notification for all selected registrations.
Employers and attorneys must log in to the USCIS registration portal to determine the status of each registration, which will be marked with one of the following statuses:
- Selected: “Selected” means that the registration was selected in the lottery. For selected registrations, employers will have 90 days to submit their H-1B petitions to the USCIS. The H-1B petition filing period begins on April 1, 2021 and ends on June 30, 2021.
- Submitted: Properly submitted registrations, which have not been selected in the lottery, will be on “hold” and will be considered for a second lottery if the USCIS does not receive enough petitions to meet the cap. Similar to last year, there is a possibility that the USCIS will hold a subsequent lottery later in the year and select some of those registrations that are being held in reserve. These registrations are likely to appear as “submitted,” until they are selected or the USCIS receives enough petitions to meet the cap.
- Denied / Invalidated-Failed Payment: Registrations may be denied because an employer submitted duplicate registrations for the beneficiary or if there was a problem with the payment of the $10 registration fee.
The USCIS will begin to accept H-1B cap petitions of the selected registrants on April 1, 2021 and the petition filing period will end on June 30, 2021. Generally, cap petitions can be filed at any time during this filing window, but some change of status cases may need to be filed at a certain specific time, for instance, for an F-1 student working in OPT status in the U.S., the cap petition would need to be filed prior to the expiration of his or her OPT employment authorization.
The USCIS has not yet announced if Premium Processing will be suspended for H-1B cap petitions as it has done for the past few years.
Status of the Travel Ban (Presidential Proclamation 10052)
President Trump’s Travel Ban (PP 10052, the Travel Ban) which had sought to bar the entry of certain foreign nationals into the U.S. on H-1B, L-1 and J-1 visas (including their dependents), was issued in June 2020 and was initially set to expire on December 31, 2020. But the travel ban was extended further until March 31, 2021. The proclamation listed certain exceptions, but for the most part, the ban applied to applicants seeking to enter the U.S. on a new H-1B, L-1 or J-1 visa. This Travel Ban largely affected those H-1B cap FY 2021 applicants who had approved petitions but were unable to apply for H-1B visa stamping due to the ban’s restrictions.
The Travel Ban was set to expire on March 31, 2021. The Biden administration has not issued any update, extension or guidance with regard to this ban as yet. Hence, it will no longer apply or be in effect from April 1, 2021. This means that applicants who were subject to the Travel Ban would now be able to apply for stamping at the U.S. consulates (subject to each consulate’s current processes, COVID related limitations and procedures).
