H-1B Cap Update: Second Round of H-1B Cap Numbers Released

Last week rumors of a second round of FY21 H-1B cap registration selections began circulating in the US immigration community. Ellis Porter is excited to report that these rumors have become reality and we started receiving new H-1B cap selection confirmations on Friday, August 14.

By way of background, by March 27, 2020, USCIS announced that it had received nearly 275,000 H-1B registrations for FY21 H-1B cap, and selected the first round of registrations. However, due to the COVID-19 pandemic, closure of borders, and several presidential proclamations, USCIS has received far fewer H-1B petitions than expected. As a result, USCIS will select additional registered cases.

What happens next?

USCIS will notify employers of any newly selected cases through their MyUSCIS portal. Employers have 90 days to file H-1B cap-subject petitions and must only file H-1B petitions for those individual beneficiaries who were selected in the registration lottery.

Although USCIS has not released any official guidance regarding this second round of H-1B cap registration selections, we anticipate they will follow the same process as the first selection round. During the first round of selected registrations, USCIS required employers to include a printed copy of the registration selection notice with the FY2021 H-1B cap-subject petition.

Can we request premium processing?

Yes, H-1B petitions requesting premium processing will require Form I-907 along with the corresponding government filing fee.

Should we request a change-of-status to H-1B or consular notification?

For those who are in a position to elect whether to request a change-of-status or consular notification, we strongly recommend this is discussed with your Ellis Porter attorney. At this time, there are several presidential proclamations in place that impact entry to the US for individuals who have been present in certain countries.

Further, on June 22, 2020, P.P. 10052 suspended the entry and issuance of H-1B visas, through December 31, 2020. Despite P.P. 10052 providing several National Interest Exceptions, US Embassies and Consulates have the discretion to determine how to apply these exceptions.

Finally, most US Embassies and Consulates only resumed limited visas services from July 14, 2020, we expect long visa appointment wait times as they catch up with the backlog created by the pandemic. Where possible and practicable, departing the US is not recommended.

Can we file with a digitally reproduced signature?

Yes. On March 21, 2020, USCIS announced that it was relaxing the “wet ink” signature requirement and began accepting immigration forms with digitally reproduced signatures, this will remain in effect until the COVID-19 National Emergency is over.

Employers must retain a copy of the original document containing the original handwritten signature as USCIS can request this at a future date.

Key Tips:

• Ensure you file the H-1B petition with a certified LCA and all supporting documents;

• Include a printed copy of the H-1B pre-registration selection notice; and

• Verify the correct filing address on the USCIS website.

Questions?

If you have any additional questions about how the additional H-1B cap selections impact you, please contact your Ellis Porter attorney and we will be happy to provide further clarification and assistance.