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USCIS Announces FY2021 H-1B Caps Reached Following Registration Selection
Practical Law Legal Update w-024-7368 (Approx. 4 pages)
USCIS Announces FY2021 H-1B Caps Reached Following Registration Selection
by Practical Law Labor & Employment
| Law stated as of 16 Feb 2021 • USA (National/Federal) |
US Citizenship and Immigration Services (USCIS) has announced that the fiscal year (FY) 2021 H-1B petition caps have been reached after completing the registration selection process.
On March 27, 2020, US Citizenship and Immigration Services (USCIS), announced that it has:
- Completed the registration selection process for fiscal year (FY) 2021 cap-subject H-1B petitions.
- Received sufficient registrations to reach both the regular and master's degree caps.
H-1B registration records in the myUSCIS system will show one of the following statuses:
- Selected, if the H-1B registration has been selected to file an H-1B petition under one of the caps. Employers will be provided with a 90-day window to file the petition, presumably beginning April 1, 2020. The selection notice must be included in the H-1B petition filing.
- Denied, if USCIS received duplicate registrations by the same employer for the same foreign worker.
- Submitted, if the registration was neither selected nor denied. Registrations marked "submitted" will remain in the system and available through the end of FY2021 for another selection process if additional H-1B cap numbers become available.
USCIS announced on March 19, 2020, that premium processing is suspended for H-1B cap cases, but later, on March 27th, announced it is indefinitely suspending premium processing for all employment-based petitions due to the COVID-19 pandemic (see Legal Updates, USCIS Announces Temporary Premium Processing Suspension for FY2021 H-1B Cap Petitions and Immigration Updates Due to COVID-19: Form I-9 Compliance, Visa Services, Travel Advisory, and More). Employers and their counsel should watch for USCIS announcements reintroducing premium processing when the agency begins resuming normal operations.
For more information on H-1B petitions generally, including what it required to prepare and file them, see Practice Note, The H-1B Nonimmigrant Visa Classification and The H-1B Visa Classification Toolkit. See also USCIS's H-1B FY 2021 Cap Season page.
For more information on how the COVID-19 pandemic impacts preparing and filing Labor Condition Applications (LCAs) and H-1B petitions, see Article, Expert Q&A: COVID-19 and Immigration.
UPDATE
On April 1, 2020, USCIS announced that:
- The period to file a cap-subject H-1B petition for selected registrations begins on April 1, 2020 and runs for at least 90 days (until June 30, 2020). Employers with selected registrations for foreign workers they currently employ or intend to employ should prepare (or work with their counsel to prepare) all the steps necessary to file the H-1B petition during this period.
- The agency received almost 275,000 unique registrations, of which 46% were qualified for the US master's degree cap. The total availability of H-1B cap cases is 85,000 (65,000 in the regular cap and 20,000 for the master's cap), resulting in a rejection rate of 69%.
Employers with unselected registrations may consider whether other immigration options are available for those foreign workers (see Employer Options When H-1B Visas Are Unavailable).
UPDATE
On April 13, 2020, USCIS announced that due to the impact of 2019 novel coronavirus disease (COVID-19), petitioners should expect a delay in data entry and receipt notice generation for fiscal year 2021 H-1B cap-subject petitions until at least May 1, 2020.
UPDATE
Reports indicate that USCIS ran a second lottery in mid-August 2020 because H-1B cap-subject petition filings did not meet the statutory H-1B cap limits.
UPDATE
On February 16, 2021, USCIS announced that it had received, for FY2021, enough petitions to reach both:
- The congressionally mandated 65,000 H-1B visa regular cap.
- The 20,000 H-1B visa US advanced master's degree exemption cap.
USCIS stated that it will continue to accept and process petitions that are otherwise exempt from the cap. Employers and their counsel may also begin preparing for the FY2022 cap season (see Legal Update, Preparing for the FY2022 H-1B Cap Season).