Legal Blogs and Updates

If you currently employ foreign nationals, please read and consider these upcoming action items relating to the rules surrounding H-1B filings for 2021.

H-1B “Cap Season” is once again upon us. It is essential for employers seeking to hire foreign national employees to identify and initiate processing of H-1B “Cap” submissions as early as possible given the large number of H filings expected again in this upcoming year. Once the Cap is reached, the category closes and it is not possible to file a new H-1 Cap Case until next year.

Note, however that the “Cap” applies only to new H-1 filings (cases for those hires never in H-1 status before). The Cap does not apply to hires already in H-1 status for another employer (because they were counted in the Cap for the previous year).

What Is H-1B Work Authorization?

H-1B Availability, Caps and Lottery Process

An employer seeking to hire foreign nationals in F-1 status, out of university programs, or those in another status, should consider filing H-1B petitions. H-1B status is available to foreign national professionals with qualifying educational backgrounds (minimum of a Bachelor’s degree), who are sponsored by an employer for a position related to the candidate’s degree and experience. Each year, there are 65,000 H-1B visas available, and an additional 20,000 H-1B visas available for individuals with U.S. Masters Degrees or Ph.D. Degrees (a total of 85,000 H-1B visas available). This represents the statutory cap. In each year (for the last several years), USCIS has reached the statutory cap.

Cap Statistics

The Administration introduced a new H-1B Cap Registration Process in 2020 to streamline the administration of the program. In that year, USCIS received 275,000 registrations for the available 85,000 visa numbers. The selection rate was approximately 31%. Because we expect the Cap will again be reached this year during the registration period, we recommend that employers file an H-1B application as soon as the applicant (employee) is eligible (even if the applicant is also eligible for F-1 OPT or STEM OPT). However, under the present system, there is no guarantee of selection (this is a true “lottery” in that there is no preference given to the individual’s country of origin, background or offer of employment). This strategy will increase the chances of selection and the ability to retain the employee beyond his/her eligibility to work under any F-1 practical training (OPT and any available STEM extensions) s/he may have.

Job Offer and Acceptance Required; Other Prerequisites to Filing

Prior to filing an H-1B:

• There must be an offer and acceptance of H-1B employment;
• The ‘Prevailing Wage’ and actual wage must be determined and compared;
• The title and job duties should be reviewed to determine if the job qualifies as an H-1B specialty occupation and if the employee qualifies for the position based on his/her educational background; and
• The Employer must register with USCIS.

Once these preliminary steps have been completed, the H-1B registration can be prepared to file a registration with USCIS between March 1-20, 2021 and subsequently, if selected, the H-1B Petition can be filed between April 1, 2021-June 30, 2021 for an effective date of October 1, 2021.

Employer Action Items

Because the chances for selection are relatively low and the advance documentation requirements are higher (and the new prevailing wage scale may require the use of an alternative wage/salary survey for the filing), we recommend that employers contact us to authorize the application process immediately. This will allow us to fully analyze an individual’s eligibility for H-1B status, obtain the required prevailing wage (and secure an alternative wage if needed), and assure that the company is properly registered with USCIS to allow for filing on March 1, so that we are prepared to register the applicant during the March 1-20, 2021 registration period, and to file the H-1B application timely if an employee is selected to file an application during the April 1-June 30, 2021 filing period.

Please note that the H-1B requirements and timing are subject to change.

Early Identification Checklist

Employers who intend to file new H-1B petitions for workers never before in H-1 status should identify and initiate processing of an H cap petition for new hires in any of the following situations:

• New Hires
  • F-1 students with OPT (Optional Practical Training) or CPT (Curricular Practical Training);
  • Individuals who are currently working in H-1B status for a cap exempt employer, such as a University or non-profit;
  • Individuals who are currently working in another nonimmigrant status (i.e.: TN, L, J, E, O);
  • Individuals who are currently outside the U.S.; and
  • Individuals who may have filed in last year’s Cap, but whose application was not selected.
• Individuals Already Employed but in a Different Status
  • Additionally, employers should identify employees currently working for them in TN or L-1B status who may benefit from changing to H-1B status, either to facilitate the permanent residence process or to gain extra time in non-immigrant status.

New Immigration Policies Make It Important that Employers Identify H-1B Cap Filing Cases Early

This year, it will especially important to initiate the H-1B process as soon as possible because of the number of administrative and regulatory changes that have taken place over the last year. New policies have made it necessary to provide a greater level of detail with respect to the employee’s position, project, and the context in which work is to be performed. Additionally, USCIS has been requesting additional documents from F-1 students. There are new rules concerning the threshold eligibility for each position as a “Specialty Occupation,” prevailing wages (and the use of alternative wages/salary surveys), and third-party placements. By initiating the process now, we will be able to work with you and your staff early enough to obtain the required information/documentation in sufficient time to secure all clearances from the Department of Labor that are prerequisites to filing the H-1B petition.

Due to the new laws that greatly impact the prevailing wage and may require that the employer engage independent vendors to provide an alternative survey to verify that the employer is paying the employee at or above the prevailing rate of pay (a process that may take several weeks), we recommend that you identify potential H-1B filings as early as possible (preferably by the end of January 2021). Because of these recent policy changes, waiting until February/March 2021 may not allow sufficient time to gather the necessary information/documentation and secure all required clearances prior to the filing deadline.

We would be pleased to discuss with you any questions you have about the H cap.