What you Need to Know for H-1Bs in 2021 And When to File

Welcome To The H-1B Lottery!

Everyone who employs highly educated foreign professional workers knows that there has been some changes in the H-1B lottery program, but is entirely unsure what those are. We are now about to enter the second year of a preregistration system for the H-1B lottery. It worked pretty well last year, and we anticipate it to run relatively smoothly this year as well.

What Are H-1B Visas?

H-1B work visas are the most common work visas for foreign nationals in professional positions (which are jobs requiring at least a Bachelor’s degree). Immigration law caps the number of new H-1B’s issued each year by USCIS to 65,000 for those with a Bachelor’s degree, and an additional 20,000 to those who graduate with at least a Master’s degree from a US non-profit university. Some categories of H-1B’s are exempt from this cap (meaning they can apply for an H-1B anytime), including those: (1) transferring H-1B’s from one employer to another, (2) extending existing H-1B’s, (3) working for US colleges or universities, and (4) working for non-profit research organizations affiliate with a US College or University. Far more H-1B cap-subject applications are submitted each year than there are visas available. This means that USCIS must conduct a lottery every year to randomly choose which applications it will process.

Now is the Time to Start the H-1B Process

For 2021, the USCIS tried to significantly change the way the H-1B Lottery was conducted in 2020. But, USCIS failed to get their changes issued and approved in to, so we will be conducting the 2021 Lottery the same way it was done in 2020.

Employers will have to decide who they are sponsoring by March 9, 2021.

Historically, employers filed their H-1B lottery applications on April 1st. But, this year employers will have between March 9 through March 25, 2021 to file an H-1B lottery application through an online USCIS portal (My USCIS) for each foreign national they wish to sponsor. The USCIS will conduct a random lottery based on all the mini-applications, and, those chosen in the lottery will be given at least 90 days to file their full H-1B applications. Those not chosen will remain in the electronic lottery registration system, and, if additional H-1B spots become available, the USCIS will choose additional H-1B applications from that reserve. That actually happened in 2020, likley becuase of the decreased economic growth associated with the COVID-19 pandemic.

The mini H-1B application requests the employer’s: (1) name: (2) primary address, (3) FEIN, and (4) authorized signatory’s contact information. It will also state the foreign national’s: (1) name, (2) gender, (3) date of birth, (4) country of birth & citizenship, (5) passport number, and (6) whether s/he has at least a Masters from a US institution. The application does not ask about the proposed job duties or work site location, and a Labor Condition Application does not need to be filed prior to the mini-application.

Last year, the USCIS also conducts the lottery to give a preference to those with at least a U.S. Master’s degree. We will also need to see if premium processing is available to this years selectees.

USCIS will charge $10 for each application, to be paid online through the pay.gov site. Please note, that if the USCIS determines that an employer has a pattern or practice of submitting multiple mini-applications, but then not following-up with filing full applications if chosen in the lottery, the employer may be fined and face civil & criminal penalties for fraud.

Regarding those in applicants on an F-1 visa and using their OPT (optional practical training) to work, that as long as their initial H-1B application was chosen, and their full H-1B application was filed prior to their OPT expiration date, their OPT work authorization will be automatically extended through September 30th (unless their H-1B is rejected, denied, revoked, or withdrawn prior to that date). Thus, to ensure that this OPT extension is activated in a timely manner, those in F-1 OPT status may want to file their full H-1Bs as soon as they are notified that they were chosen in the lottery (rather than using much of their 90-day filing window).

Foreign nationals must have their qualifying degree by the time they file the full application. Thus, a foreign national who is close to graduating with their Bachelor’s degree can file the mini-application, and then, if chosen in the lottery, take the full 90-day period to file the full H-1B application to allow time for the degree to be awarded. One note, however, the mini-application asks whether the foreign national has at least a US Master’s degree in the current tense. The USCIS may require those applying under the US Masters cap to have their degrees by the time they file the actual application.

In the meantime, employers should start preparing their H-1B lottery lists now, given the impending March 1st mini-application timeline.

The key point of these initial applications, however, is that an employer should NOT file for the lottery unless the employer is sure the application will be approved. For this reason, Kuck Baxter Immigration strongly recommends that ALL of the necessary documentation that WILL be required for the full H-1B be received, reviewed, and approved by us prior to filing for the lottery. It will be very hard to win the case of a selected lottery winner who cannot prove they are actually eligible for the H-1B. And, given the 70% RFE rate in 2020 for H-1B cases, and the almost 30% denial rate on H-1Bs in 2020, now, more than ever, we have to anticipate what USCIS will ask for and provide it upfront with the filings. RFEs and subsequent denials benefit no one.

Who Should File?

By way of preparation, employers should take a look at their current employees working under the F-1 Optional Practical Training (OPT) program (even those with STEM extensions in place), who need to be transitioned to H-1B status after its conclusion, as well as those people it wishes to hire from abroad to work for them in the US in professional positions.

We also anticipate some Congressional changes in the H-1B program, which will most likely affect dependent employers, and will likely result in a higher minimum wage requirement.

Contact our experienced business immigration attorneys at Kuck Baxter Immigration at 404-816-8611 with any questions you have about applying for an H-1B, or for any other immigration matter. You can also email us at lrosmarin@immigration.net.