H-1B season is upon us again. The H-1B cap lottery may have changes again this year. Traditionally, employers flock to file their H-1B cap petitions in the first week of April to compete for the annual 85,000 quotas. This meant that employers and their attorneys had to prepare complete submissions beginning as early as February and up until the end of March in order to ensure that all petitions were filed immediately once the cap opened on April 1st. These applications were sent out with no certainty that it would even be adjudicated if it did not get selected in the lottery.
Lottery Registration System Implemented in 2020
In 2020, USCIS implemented an electronic registration process for FY 2021. Petitioners and their attorneys would first need to register online and pay $10 registration fee per beneficiary before filing. Only once petitions are selected for filing are prospective employers required to submit completed H-1B cap-subject petitions. This process streamlined processing by reducing the paperwork and saved countless hours of work putting together applications that would have been otherwise rejected if not selected in the lottery.
USCIS conducted its first lottery selection in March 2020 and invited those selected to submit their petitions by June 30, 2020. By August 2020, USCIS announced a second round of lottery as it did application received did not reach the 85,000 visa quotas. The 2020 electronic registration process helped reduced unnecessary work on H-1B application. We anticipate that USCIS will conduct the H-1B lottery in a similar fashion for the fiscal year of 2022.
Proposed Changes from the Previous Administration
On January 7, 2021, USCIS announced a final rule to modify the H-1B cap selection process this year. The new rule proposed to amend current lottery procedures and prioritize wages to protect economic interest of U.S. workers. The new rule will incentivize employers to offer higher salaries and higher skilled positions to increase the chances of selection. Therefore, instead of a random selection process, the new rule will give preference to registrations with an offered wage on the highest Department of Labor (DOL) Occupational Employment Statistic wage level. The DOL wage data is divided into four levels which Level IV being the highest level. The new rule would prioritize all Level IV wage positions if USCIS received more petitions than the allotted quota of 85,000. Essentially, this would make it impossible for all lower wage level I and II positions to compete with in the H-1B lottery. This new rule also would prevent employers from amending the H-1B petition subsequently to request a lower wage.
Back on October 8, 2020, the Department of Labor issued a rule on increasing prevailing wages for H-1B and other immigrant workers. However, the rule to increase wages was blocked by federal courts for procedure defects on December 1, 2020.
On January 14, 2021, DOL issued another interim final rule, Strengthening Wage Protection for the Temporary and Permanent Employment of Certain Alien in the United States increasing the prevailing wages. The rule is set to take effect on March 15, 2021. Many employers have expressed concerns over the dramatic increase in wages which will alter the employer’s ability to hire H-1B workers.
Reversal by the Current Administration
In his first day in office, President Biden’s administration issued a memorandum freezing the prevailing wage increase initiated by the previous administration. The rule is under review for 60 days. Furthermore, the White House withdrew the rule redefining employer-employee relationship for H-1B purposes which made it difficult for staffing agencies to hire H-1B workers. All other new H-1B initiative announced will be put on a freeze for 60 days.
USCIS has not announced the structure of this year’s H-1B registration process. However, we anticipate that the process will be similar to last year’s registration process. Registration will require an online USCIS account to register each potential H-1B employee. If the beneficiary is selected, USCIS will invite the petitioner to file its H-1B petition.
The current administration has signaled that it will prioritize immigration and reform the current H-1B regulations. We will provide updates of further details as we get closer to the H-1B registration period.
With many uncertainties looming, we encourage employers to start the H-1B process early this year and speak with an experience immigration attorney. Here at W&O’, our team of experienced attorneys have dealt with numerous H-1Bs over the years. Moreover, we have been tracking the recent news regarding the registration process since it was first announced and have sat in on all relevant seminars regarding the same.
CHIEN-YU (MICHAEL) WANG
MANAGING ATTORNEY – SACRAMENTO
Michael WangChien-Yu (Michael) Wang is the Managing Attorney at Wilner and O’Reilly’s Sacramento office. He handles both family and business based immigration matters along with removal defense. Mr. Wang is admitted to the State Bar of California and the U.S. District Court for the Central and Eastern Districts of California. He is a member of the Los Angeles Country Bar Association, the Southern California Chinese Lawyers Association, the Sacramento County Bar Association and the Asian-Pacific Bar Association of Sacramento.
Mr. Wang graduated from the University of California, Davis with a Bachelor’s Degree in Japanese and East Asian Studies, and also studied at the Waseda University in Tokyo, Japan. He earned his Juris Doctorate degree from Southwestern Law School, graduating at the top of his class. While at Southwestern, Mr. Wang was awarded the Southwestern Alumni Scholarship for his service in Public Interest. Also during law school, Mr. Wang worked at the Legal Aid Foundation of Los Angeles (LAFLA) in the Asian Pacific-Islander Community Outreach Unit, where he helped monolingual Chinese clients with their immigration matters. Prior to joining Wilner & O’Reilly, Mr. Wang clerked at the California Department of Justice, working on complex anti-trust litigation matters.
As an associate attorney at Wilner & O’Reilly, Mr. Wang is responsible for preparing and accompanying clients to USCIS for both family and employment-based adjustment of status interviews, naturalization interviews, and N-336 appeals. In addition, he prepares Motions to Reopen/Reconsider and Waivers and Appeals to USCIS, the Administrative Appeals Office, and the Board of Immigration Appeals. Mr. Wang prepares both immigrant and non-immigrant visas such as L-1 intra company transfer visas, E-2 treaty visas, and various employment based petitions, and also represents clients in removal proceedings where he is versed in forms of relief such as cancellation of removal proceedings and 237(a)(1)(h) waivers.
Committed to public interest, Mr. Wang volunteers his time at many community based pro-bono legal clinics. As an immigrant from Taiwan, he has gained valuable personal experience with the immigration system in the United States. Mr. Wang is fluent in Mandarin Chinese and conversant in Japanese.