Updates

(September 15, 2021). The California Northern District Court vacated the H-1B cap “highest paid” lottery rule, finding that that former acting Secretary of Homeland Security Chad Wolfe was not legally appointed to that position, and therefore had no authority to issue it. Read the decision in Chamber of Commerce of the United State of America et al v. United States Department of Homeland Security et al, Case No. 4:20-cv-07331.

(September 1, 2021). USCIS is requesting public comments on proposed revisions to the H-1B Registration Tool, that would implement the January 8, 2021 Modification of Registration Requirement rule now scheduled to go into effect on December 31, 2021. USCIS will accept comments on the proposed H-1B Registration Tool form until November 1, 2021. See:

  • 86 FR 49043 (September 1, 2021), the H-1B Registration Tool comment notice, which contains instructions on submitting comments regarding the proposed form revisions.

  • H1B Registration Tool-007-REV-Screen Mockups of the proposed revised form, dated January 14, 2021 and the subject of this request for comments.

    • Compare this to the proposed revisions dated January 8, 2021, which included questions related to the original March 9, 2021 rule. The January 14, 2021 version of the proposed form, which is the subject of the request for comments, does not contain the questions that relate to the March 9, 2021 rule. The comment notice says that "The H-1B Selection Final Rule related changes to the information collection instrument will not be implemented before that rule's new effective date, December 31, 2021."

  • H-1B Registration Tool-007 (PDF identifying each of the proposed changes to the form)

(February 8, 2021). The original March 9, 2021 effective date of this January 8, 2021 final rule was postponed until December 31, 2021, through a final rule published at 86 FR 8543 (February 8, 2021). This means that for the FY 2022 H-1B cap season, "USCIS will apply the current regulations (random selection)" to any H-1B cap registration period that takes place before December 31, 2021.


Summary of the Rule

A USCIS final rule titled Modification of Registration Requirement for Petitioners Seeking To File Cap-Subject H-1B Petitions, published on January 8, 2021 and now set to become effective on December 31, 2021, will modify how USCIS manages the H-1B cap-subject registration requirement "by generally first selecting registrations based on the highest Occupational Employment Statistics (OES) prevailing wage level that the proffered wage equals or exceeds for the relevant Standard Occupational Classification (SOC) code and area(s) of intended employment." Currently, cap-subject registrations received during the registration period are counted in a random selection process.

The preamble to the final rule states that "USCIS will engage in public outreach and provide training to the regulated public on the modified registration system in advance of its implementation."

DHS had proposed this rule on November 2, 2020. NAFSA participated in the public comment process, signing on to the following comment letters: