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Know the Law: Can I Still Obtain an H-1B Visa?

Written by: Ramey D. Sylvester

Published in the Union Leader (2/28/2021)

Q. After many unsuccessful attempts at filling an open position, my company recently interviewed an exceptionally qualified candidate. The candidate is a foreign national living abroad. Years ago, my company obtained a visa for an employee in the H-1B lottery. We are interested in obtaining an H-1B visa for this candidate. However, I heard that H-1B visas were banned or the lottery was eliminated. Is there still a way to obtain an H-1B visa?

A. Good news! The H-1B lottery is alive and well, for now. Under the Trump administration, U.S. Citizen and Immigration Services (USCIS) adopted a rule effectively eliminating the H-1B lottery system in favor of a wage-based process. However, the Biden administration delayed the rule’s effective date until Dec. 31, 2021. Therefore, your company may still seek a visa in the H-1B lottery for the 2022 H-1B cap season.

Note that the application process recently changed. In years’ past, applicants seeking H-1B visas subject to the annual cap (the lottery system) would submit voluminous petitions to USCIS. Then, USCIS would randomly select petitions, review them, and approve or deny the petition.

In 2020, USCIS streamlined the process. Now applicants register and pay a $10 fee. Then USCIS selects applicants via a lottery and invites them to submit petitions for USCIS to approve or deny.

The initial registration period for the 2022 H-1B cap season begins at noon (EST) on March 9, 2021 and runs until noon March 25, 2021.

Selected applicants will be invited to submit petitions no earlier than April 1, 2021. If a petition is approved, the foreign national living abroad will seek admission to the United States through their local consulate office. Once an H-1B visa is issued, the foreign national may enter the U.S. to begin employment no earlier than Oct. 1, 2021.

You should be aware that at the end of 2020, the Trump administration extended a proclamation until March 31, 2021 that suspends entry of certain nonimmigrants due to the COVID-19 pandemic.

This in effect banned H-1B visa applicants living abroad. Note that an H-1B visa for the 2022 H-1B cap season would not be issued until after March 31.

However, the Biden administration has not signaled whether it will extend the proclamation or issue similar proclamations after March 31.

The H-1B application process is complex. I recommend that you seek legal counsel to assist you as you navigate obtaining an H-1B visa for your potential employee.

Ramey Sylvester can be reached at [email protected].

Know the Law is a bi-weekly column sponsored by McLane Middleton, Professional Association. Questions and ideas for future columns should be emailed to [email protected]. Know the Law provides general legal information, not legal advice. We recommend that you consult a lawyer for guidance specific to your particular situation.

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