Are you Ready for the H-1B CAP Filing?

The year 2020 was swallowed by COVID.  It is hard to believe that the annual H-1B CAP filing season is about to start soon. We expect the registration period to open in early March of 2021.Last year was the first time that the new H-1B registration system was implemented.  USCIS is expected to use the same registration system again for 2021.  If so, we expect that the agency will make some announcements regarding this year's H-1B application process very soon.  The "Wage Selection" Rule Delayed Until 12/31/2021Trump implemented a H-1B wage selection rule, which is based on a ranking of wages offered by employers. Although the rule is scheduled to take effect in March, the Biden Administration announced it will  publish a notice in the Federal Registrar delaying the effective date of the wage selection rule until 12/31/2021 for reasons relating to implementation, training, policy review, etc.   Hence, the wage selection rule will not apply in this CAP season. Still, we must follow a very tight application timeline.  Application Timeline   Timeline­1   What to Do or Expect January – Early March

• Recruit H-1B employees, consult with attorneys
• Evaluate the “specialty occupation” position you plan to file for, and determine job duties and requirements
• Gather employer/employee documents and other supporting docs

 Late February

•  H-1B employers/attorneys can start creating USCIS accounts

Early March – Mid March

• Employers recognize attorney’s representation (if any) in USCIS system
• Complete H-1B Registration online

  Mid-March – End of March

• USCIS to conduct visa lottery and send out notifications to selected applicants

 April to June

•  Submit complete H-1B petition with LCA to USCIS

 April and onward

•  USCIS to adjudicate H-1B petitions
• Respond to any Request for Evidence (RFE)

Mid-August

• USCIS conducts a 2nd H-1B lottery to use up any leftover visa numbers

 Mid-August – Mid-November

• Submit complete H-1B petition with LCA for candidates selected in the 2nd lottery to USCIS

 October and onwards

• USCIS continue to adjudicate throughout this time
• Respond to any Request for Evidence (RFE)
• Change of Status Employees may start working in H-1B status upon approval
• Consular Processing Employees can obtain H-1B visa upon approval to enter the U.S. 

1. Timeline is based on how the 2020 CAP season unfolded.ConclusionAlthough Trump's wage rule has been delayed, there are other familiar H-1B issues to deal with including "specialty occupation", "employer-employee relationship", "maintenance of status", etc.  As usual, early planning and proper legal advice are key to ensure a smooth application process.