Third H-1B Cap Lottery Completed; Newly Selected Petitions Must Be Filed by February 23rd

USCIS has just completed the third round of the H-1B cap selection lottery and notified the selected applicants. The November 2021 selection round was due to the fact that a (still significant) number of H-1B cap registrations selected under the first and second rounds did not file an H-1B petition before the deadline; as a result, USCIS is allocating the unused numbers randomly among the non-selected cases under the first and second rounds. This is the first time USCIS ever has had to conduct a third lottery in the 2 years of this revised cap selection process’s history.

Chances of Third Round Lottery Selection Slim

We caution that the likelihood a registration will be selected under the third round remains small. The unused H-1B cap numbers will have to be allocated among ~200,000+ first and second round non-selected registrations. While at this time USCIS has not officially announced how many cases were selected but not submitted under the first and second rounds, we estimate that the likelihood a case be selected under the third round selection to be less than 10%. This is consistent with the third round lottery selections we are seeing at our office (and we have notified all of our selected H-1B cap registrants already).

Process for H-1B Cap Petition Submission for Selected Registrations

Registrations which have been marked as “Selected” under the third round will be allowed to download an electronic (PDF format) H-1B cap Registration Selection notice which includes detailed information about the petitioner and the selected beneficiary and advises that the employer has up until February 23, 2022 to submit a fully-prepared and documented H-1B petition with USCIS.

The H-1B petition must include a copy of the Registration Selection notice. The notice also indicates the USCIS service center where the petition should be filed while making it clear that only the named employer can file only for the named beneficiary with no substitutions of beneficiaries permitted.

We Recommend Preparing and Filing as Fully-Documented as Possible H-1B Cap Petitions As Early As Possible

We recommend selected registrants consider submitting as fully-prepared and documented petition as early as practicable and definitely well before the February 23, 2022 deadline in order to avoid any last-minute glitches or issues.

It may be possible to refile a rejected H-1B cap petition within the deadline, but if an H-1B petition is rejected after February 23rd, there is no recourse and the H-1B cap registration will be lost.

Additionally, during last year’s second lottery process USCIS experienced a number of issues when it comes to documenting H-1B cap validity dates for LCAs filed after October 1st; while we understand that USCIS has resolved this technical interpretation of the process, we still recommend getting an LCA filed and approved as soon as possible.

Major Issues During This Year’s H-1B Cap Filing Season – What to Watch Out For?

We anticipate the major issues during this year’s H-1B cap filing season to be in line with last year where we all observed a historically high rate of RFEs and scrutiny by USCIS.

Specialty Occupation. The #1 issue over the last couple of years has been the specialty occupation issue which essentially focuses on the position and that it is demonstrated that it requires a bachelor’s degree (or higher) in a specific field of study related to the position. See our in-depth article on this topic. Our job during an H-1B petition preparation is to analyze an offered position, identify red flags and suggest ways to address them for the strongest possible petition.

Wage Level I/Entry-Level Position. Entry-level positions, classified under Wage Level I, should be consistent with the SOC job category and with the actual job description. Entry-level positions in some SOC categories (Programmers, for example) are also not considered to meet the specialty occupation standard. An example: avoid classifying “Senior Managers III” as Wage Level I positions. See our in-depth article on this topic.

Third-party Placement/Right to Control. USCIS expects to see documentation of the relationships between the employer and the end client, including middle vendors. As many as possible of the contracts, purchase orders, statements of work and letters should be provided and they would ideally address the full duration of the placement, identify the employee, the position and its requirements, and the H-1B employer’s continued right to control the employee at the third-party worksite. Our office has a number of well-tested and “tuned” templates and we are definitely happy to provide extensive guidance on how to best present and document third-party placement cases in order to get an approval and for the longest-possible H-1B validity term.

In-house Project Documentation. H-1B employees who are placed to work at an in-house project may be expected to provide extensive documentation about the credibility of such project, including technical, business, marketing, etc. materials. Project timelines and evidence of available office space are often required as well. The in-house project scrutiny is significantly higher towards employers who typically place workers at third-party worksite locations.

CPT and Maintenance of F-1 Valid Status. “Day-1” CPTs are not unlawful; however, they have received a lot of bad publicity and USCIS questions if such CPTs are authorized properly. Before requesting change of status from F-1 to H-1B as part of an H-1B cap petition, we recommend carefully analyzing the validity (and possible documentation) of F-1 CPT and to weigh the possibility of requesting an H-1B to be approved with “consular processing” to avoid the issue altogether (although this will require leaving the US, attending H-1B visa stamp appointment at US consulate and then reentering the US on H-1B status). See this article on F-1 CPT as background.

These are not the only H-1B cap issues which have to be addressed but they cover, by far, the most common areas of USCIS scrutiny.

Attorney Assistance with H-1B Cap Preparation and Submission

Our office will be happy to provide consultations or assistance with preparing and submitting petitions H-1B cap petitions.    Note that our office is able to assist with an H-1B cap petition even if the H-1B cap registration was submitted by the employer (without using an attorney) or by another law office.

If you would like to schedule a consultation with an attorney to discuss a specific case (but perhaps without engaging us to help with the actual filing), we offer phone consultations.

Frequently Asked Questions

Can Capitol Immigration Law Group file the H-1B petition even if the cap registration was submitted by someone else?

Yes, absolutely, we can do this even if another attorney filed the cap registration. In addition to the normal H-1B petition documents (we will share checklists and templates), we will need the online H-1B Registration Selection notice.

The third-party client is not willing to provide much or any documentation – what can I do?

We recommend having an honest discussion and explain to the end client the importance of good documentation. Sometimes the other party may not realize the importance or the purpose. We also can document the facts of the placement in a number of other ways – project correspondence, task orders, invoices, sometimes even public records. Direct documents are best but there are alternatives.

If the H-1B cap petition is denied before February 23, 2022, can the petition be refiled?

Our office has been trying to find a confirmation to this question but no firm answer yet. USCIS has indicated that if an H-1B petition is rejected then it can be refiled as long as the refiling is done before the filing window. They have not indicated that this is the same if the petition is filed, accepted and then denied.

Conclusion

Congratulations to all selected H-1B cap registrants — our office is ready to assist with the preparation and throughout the adjudication process — please contact us as soon as possible.  Our attorneys and professionals stand ready to review your case, as part of our free initial consultation, and will help you prepare a strong H-1B application.