Today at noon Eastern Time, U.S. Citizenship & Immigration Services (USCIS) closed the annual H-1B registration process. USCIS will now apply random numeric selection processes (“lotteries”) to select registrations, first under the Regular H-1B Cap and then under the U.S. Master’s Cap. USCIS anticipates notifying those selected by March 31, 2021. Petitioners with selected registrations may proceed with filing H-1B petitions during the designated filing period, April 1 through June 30. USCIS has not announced yet if Premium Processing will be available for new H-1B cap filings; however, Premium Processing has been discontinued for cap petitions in recent years.
Properly submitted registrations that have not been selected will remain in the system as valid registrations with their status designated as “Submitted” for the remainder of the fiscal year. These remaining submissions will be available for selection in the future if the current fiscal year cap reopens. The cap could reopen if a relatively high number of registrations do not result in actual filings with USCIS during the 90-day filing window or H-1B petitions are denied. This means there is still a chance, currently unquantifiable, that registrations not updated as “selected” by March 31st could still be selected in the future. Such selections did occur in the prior fiscal year. Foster recommends that employers continue to monitor their emails closely for notifications from USCIS of H-1B cap registration selections.
H-1B Cap-Gap Considerations
The helpful “cap-gap extension” provision affords an automatic extension of Optional Practical Training (OPT) work authorization to students in F-1 status. To qualify for the “cap-gap extension”, a student must be the beneficiary of a petition requesting a change of status to H-1B that was filed before the student’s OPT work authorization expired and that requests an H-1B start date of October 1st, the beginning of the next USCIS fiscal year. As a result, if an H-1B registration is selected in the H-1B “lottery” and an H-1B petition timely filed, the F-1 student may maintain continuous employment authorization through September 30, even though the student’s OPT work authorization (with or without the STEM extension) would otherwise expire between April 1st and October 1st. Limitations apply that restrict international travel while an H-1B petition is pending and the individual is working pursuant to the “cap-gap” authorization. If the H-1B cap petition remains pending on October 1 and the F-1 student has no other work authorization, then the F-1 student must stop working as the cap-gap provision extends work authorization only through September 30.
International Travel Considerations
Foster continues to advise against unnecessary international travel; however, if travel is needed, a travel consultation is recommended with a Foster attorney to discuss COVID-19 related travel issues and the potential impact on a pending H-1B petition.
Foster will continue to monitor updates regarding the FY 2022 H-1B cap filing season and will make future updates available as appropriate via our firm website at www.fosterglobal.com.