February 15, 2021 Newsletter Powered by ABIL

USCIS Delays H-1B Wage-Based Selection Process for Cap-Subject Petitions

U.S. Citizenship and Immigration Services (USCIS) is delaying the effective date of a final rule that changed the selection process for cap-subject H-1B petitions. The rule would essentially eliminate the lottery process to give priority to higher wage offerings. The wage-based selection process is delayed to December 31, 2021, meaning that it will not be in effect for the upcoming H-1B filing season this March.

For the upcoming H-1B cap lottery, USCIS will use the current regulations and selection process (random selection) to select registrations submitted during the filing window of March 9 to March 25, 2021. The H-1B lottery process saw significant changes last year, with the implementation of a pre-registration process.


FY 2022 H-1B Visa Registration Period Starts March 9

U.S. Citizenship and Immigration Services (USCIS) announced that the initial registration period for FY 2022 H-1B cap-subject petitions opens at noon ET on March 9, 2021, and runs through noon ET on March 25, 2021. Representatives and registrants must wait until March 9 to create and submit H-1B registrations.

USCIS explained that prospective petitioners (registrants) must use a “registrant” account within myUSCIS to submit their registrations. Registrants will not be able to add more information after they select “I am an H-1B registrant” account type until the initial registration period opens. Petitioners submitting their own registrations will enter their company information as part of their first H-1B registration. Petitioners working with a representative will review company information that the representative enters before submitting the registration for each prospective beneficiary.

Representatives can create an account at any time by using the same kind of account already available to representatives. Representatives who already have a representative account may use that account; they do not need to create a new account, USCIS said.

USCIS has released instructions and a video on how to set up an account and register (link below).


DOL Proposes To Delay Effective Date of H-1B/PERM Wage Rule Until May

The Department of Labor’s Employment and Training Administration has proposed to delay the effective date of a Trump administration rule, “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States.” The implementation of the rule published in January will now be delayed until May 14, 2021. The notice states that the proposed delay “will allow agency officials the opportunity to review any questions of fact, law, or policy the rule may raise.”


  • “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States: Proposed Delay of Effective Date,” Federal Register, Feb. 1, 2021, https://bit.ly/3aKAkSB

USCIS Rescinds 2017 Policy Memorandum on H-1B Computer-Related Positions

On February 3, 2021, U.S. Citizenship and Immigration Services (USCIS) rescinded PM-602-0142, “Rescission of the December 22, 2000 ‘Guidance memo on H-1B computer related positions.’ ” USCIS said its officers should not apply the rescinded memo “to any pending or new requests for H-1B classification, including motions and appeals of revocations and denials of H-1B classification,” and that further guidance is forthcoming.

USCIS explained that on December 16, 2020, the U.S. Court of Appeals for the 9th Circuit issued a decision in Innova Solutions v. Baran, where the court overturned USCIS’s denial of an H-1B nonimmigrant visa petition as arbitrary and capricious. The court’s opinion noted that while USCIS did not explicitly rely on PM-602-0142, the denial followed its logic. To ensure “consistent adjudications across the H-1B program, USCIS is rescinding PM-602-0142,” the new USCIS policy memorandum said.



FY 2021 H-1B Cap-Subject Nonselection Notices Issued

According to reports, U.S. Citizenship and Immigration Services (USCIS) appears to have finished selecting H-1B cap-subject lottery registrations for fiscal year (FY) 2021 (Oct. 1, 2020-Sept. 30, 2021). Employers and counsel who have not yet been notified can check their accounts in https://my.uscis.gov/ for a Form I-797C, Registration Nonselection. (The nonselection notices include a typo referring to FY 2022 rather than FY 2021. USCIS said it will send corrected notices.)


USCIS To Dispose of Old SAVE Records

On May 14, 2021, U.S. Citizenship and Immigration Services (USCIS) will dispose of Systematic Alien Verification for Entitlements (SAVE) records that are more than 10 years old, which are defined as those dated on or before December 31, 2010. SAVE users have until May 10, 2021, to download case information from the Historic Records Report if they want to retain information about these SAVE cases.

Questions and requests for additional information may be emailed to SAVE.Help@uscis.dhs.gov.



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