Key Deadlines for H-1B CAP Electronic Registration Process

Employers seeking to sponsor candidates for initial H-1B sponsorship (commonly known as ‘H-1B CAP’) should begin preparing for the H-1B electronic registration process. Although the U.S. Citizenship and Immigration Services (USCIS) has not announced the exact dates for electronic registration, previous registration periods have opened for three weeks during March, with employers notified of their selections shortly after the registration period has closed.

During open registration, employer registrants must create an online account with USCIS and register both the employer’s corporation information (if not completed previously) as well as the information of the employee for whom the employer will sponsor. USCIS will assign each employee a unique registration number.

USCIS requires a $10.00 non-refundable fee for each employee registration submitted, with payment available only through https://www.pay.gov/public/home.

For each sponsored employee, employers must provide the employee’s legal name, gender, date of birth and citizenship, and passport number, and must state whether the beneficiary has a master’s degree or higher from a U.S. institution of higher education (making the beneficiary eligible for the advanced degree exemption).

At the time the electronic registration is submitted, the employer’s authorized signatory must certify, under penalty of perjury, that the information provided in the registration is accurate and complete, and that the employer intends to file an H-1B petition on behalf of the named employee, if selected.

Although the dates of the electronic registration have not yet been announced, the registration will be open for a minimum of 14 days in March. During this period, employers may submit registrations for any employees they wish to sponsor. USCIS will announce the actual end date of the registration period on its website based on the number of registrations that it has received. Last year, the initial registration period was open from March 9, 2021, to March 25, 2021.

At the end of March, only days after the registration period closes, USCIS will conduct a random selection process from all properly submitted electronic registrations and will notify employers (and their designated representatives) by e-mail or text message of their selected registrations. Employers’ online accounts will be updated with a selection notice for each employee registration selected so the employer can file an H-1B CAP-subject petition on behalf of the individual named in the notice. Petitions must be filed in accordance with the filing period stated in the notice.

If USCIS receives more than enough registrations to meet the regular and advanced degree H-1B CAP allotment, all registrations that were not selected in the lottery will remain on a waitlist, indicating a status of “submitted.” USCIS will select from those registrations that are on the waitlist to meet the numerical allotment only if necessary.

Employers with selected registrations may begin filing H-1B CAP petitions on April 1, 2022, and will be given at least 90 days from the date of a registration selection to file the H-1B CAP petition. USCIS will adjudicate petitions in the order in which they are received.

USCIS will not consider a cap-subject H-1B petition to be properly filed unless it is based on a valid, selected registration for the same employee and the appropriate fiscal year, unless the registration requirement is suspended.

Attorneys may submit registrations on behalf of employers provided a Form G-28 is submitted on behalf of the employer.

A Labor Condition Application (LCA) is not required to be completed prior to the electronic registration process, but if the employee’s registration is selected, the employer must include a certified LCA with the H-1B petition filing.

Employers requesting F-1 change of status on behalf of an employee who requires “cap-gap” protections, must file the H-1B CAP petition before the employee’s optional practical training (OPT) expires, irrespective of the 90-day filing timeframe allotted to file the H-1B CAP petition upon receiving notification of the registration selection.

USCIS has not yet announced whether premium processing will be available for H-1B CAP petitions.

USCIS will post step-by-step instructions on how to complete the registration process, along with key dates and timelines, on its website as the initial registration period nears.

Source: National Law Review, January 18, 2022: https://www.natlawreview.com/article/immigration-weekly-round-chamber-commerce-pushes-immigration-reform-covid-19-spikes

USCIS Provides Guidance on O-1 Nonimmigrants

U.S. Citizenship and Immigration Services (USCIS) clarified guidance on how the agency determines whether an O-1B beneficiary will be evaluated as a person of extraordinary ability in the arts or as a person of extraordinary achievement in the motion picture or television industry when a case has elements of both.

USCIS explained that individuals of extraordinary ability in the arts or extraordinary achievement in the motion picture or television industry may be eligible for O-1B classification. The updated guidance “will help officers and petitioners determine whether a beneficiary falls into the arts category or the motion picture and television category” and “will help with cases that have elements of both classifications, such as actors, directors, composers, or set designers who work in both motion pictures and television and live theater. It will also help officers and petitioners understand where streaming internet productions fall in these categories,” USCIS said.

Among other things, the guidance notes that analysis of whether a production is within the motion picture or television industry (MPTV) is not limited to whether it will air on a television screen or in a movie theater, as the industry has grown to encompass some online content. “While static web materials and self-produced video blogs and social media content generally do not fall into the MPTV category, USCIS considers streaming movies, web series, commercials, and other programs with formats that correspond to more traditional motion picture and television productions to generally fall

within the MPTV industry’s purview,” USCIS said. Accordingly, USCIS “may properly consider work on such productions to fall under the O-1B (MPTV) classification.”

SOURCE: ABIL Newsletter, January 16, 2022

  • USCIS alert, Jan. 13, 2022, https://www.uscis.gov/newsroom/alerts/uscis-provides-clarifying-guidance-on-o-1-nonimmigrants-in-arts-vs-motion-picture-and-television
  • “Policy Alert: Determining the Appropriate O-1B Classification for Persons of Extraordinary Ability in the Arts or Extraordinary Achievement in the Motion Picture or Television Industry,” USCIS, Jan. 13, 2022, https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20220113-ExtraordinaryAbility.pdf

USCIS Reminds Public of Available Immigration Help for Natural Disasters

U.S. Citizenship and Immigration Services (USCIS) issued a notice on January 12, 2022, reminding the public that the agency offers immigration services “that may help people affected by unforeseen circumstances such as natural disasters,” including the Marshall fire in Colorado.

USCIS said following measures may be available on a case-by-case basis upon request:

  • Changing nonimmigrant status or extending a nonimmigrant stay for an individual currently in the United States. “Failure to apply for the extension or change before expiration of your authorized period of admission may be excused if the delay was due to extraordinary circumstances beyond your control,” USCIS said;
  • Re-parole of individuals previously granted parole by USCIS;
  • Expedited processing of advance parole requests;
  • Expedited adjudication of requests for off-campus employment authorization for F-1 students experiencing severe economic hardship;
  • Expedited adjudication of employment authorization applications, where appropriate;
  • Consideration of fee waiver requests due to an inability to pay;
  • Flexibility for those who received a Request for Evidence or a Notice of Intent to Deny but were unable to submit evidence or otherwise respond in a timely manner;
  • Flexibility if you were unable to appear for a scheduled interview with USCIS;
  • Expedited replacement of lost or damaged immigration or travel documents issued by USCIS, such as a Permanent Resident Card (Green Card), Employment Authorization Documents, and Arrival/Departure Record (Form I-94); and
  • Rescheduling a biometric services appointment.

Source: ABIL Newsletter, January 16, 2022

  • USCIS alert, Jan. 12, 2022, https://www.uscis.gov/newsroom/alerts/immigration-help-available-to-those-affected-by-natural-disasters-and-other-unforeseen-circumstances-0

Coming Up: USCIS Listening Session on L Petition Adjudications

U.S. Citizenship and Immigration Services (USCIS) will hold a listening session on Tuesday, January 25, 2022, from 2 to 3:30 p.m. ET. The listening session is for stakeholders to provide feedback on modernizing and simplifying the regulations governing L petition adjudications. USCIS is seeking input on all aspects of L adjudications, including L-1A managers and executives, L-1B specialized knowledge workers, new office petitions, blanket petitions, and evidentiary issues. USCIS said this is part of a series of listening sessions that USCIS will host in the coming months to seek input on business and foreign worker-related policy considerations. To register, visit https://public.govdelivery.com/accounts/USDHSCIS/subscriber/new?topic_id=USDHSCIS_530 and complete the registration process. Send any questions to [email protected] or see https://www.uscis.gov/outreach/contact-public-engagement

Source: ABIL Newsletter, January 16, 2022