H-1B Cap Selection Process Update – DHS Postpones Effective Date of Final Rule

The U.S. Department of Homeland Security (DHS) will delay the effective date of a rule issued two weeks prior to the end of the Trump administration that seeks to change how H-1B “specialty occupation” visa applications are processed. Specifically, the delayed rule would, among other things, change the current H-1B lottery registration process and implement a selection process prioritizing H-1B visa applications based on the highest Occupational Employment Statistics (OES) prevailing wage level associated with the position’s relevant occupational code and area of intended employment.

The rule had been scheduled to go into effect on March 9, 2021, and would have dramatically altered this year’s H-1B registration process. DHS is delaying the rule’s effective date until December 31, 2021, citing insufficient time to complete system development, test modifications, conduct public outreach, and train staff by the time the initial registration period opens for the upcoming fiscal year cap season (FY 2022). DHS plans to apply the regulations currently in place (random selection) to the initial registration period for the FY 2022 registration process. It is possible, though still unknown, if the rule will undergo any revisions or be delayed indefinitely.

The registration period for FY 2022 has not yet been announced. The H-1B electronic registration period (for the lottery) must last a minimum of 14 calendar days and must start at least 14 calendar days before the earliest date on which H-1B cap-subject petitions may be filed for a particular fiscal year (making March 18, 2021 the latest possible start date). USCIS must also announce the start and end dates at least 30 days in advance, so we anticipate an announcement soon. Last year, the registration process began on March 1, 2020 and ended on March 20, 2020.

We will continue to monitor announcements on the registration dates for this year’s registration process for new H-1B workers subject to the numerical cap. 

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.