The United States Citizenship and Immigration Services (USCIS) recently announced that it would accept certain resubmitted H-1B cap-subject petitions for fiscal year (FY) 2021. The provision applies to FY 2021 petitions that were rejected or administratively closed just because they were based on registrations submitted during the initial registration period, but the requested start date was after October 1, 2020.

If your petition falls under this category, you may re-submit that previously filed petition, with all applicable fees before October 1, 2021. If properly resubmitted, it will be considered to have been filed on the original receipt date. The addresses for re-submitting the petitions can be found here.

Points to be Noted

• Make sure you include your FY 2021 H-1B cap registration selection notice while re-submitting the petition.

• If you have received a rejection or administrative closure notice for the original FY 2021 H-1B cap petition, that must be enclosed.

• It is recommended to use a bright-colored coversheet indicating that you are refiling an FY 2021 H-1B cap case that was originally rejected or administratively closed solely due to the reason stated above. This will make sure that it is reviewed upon receipt.

Background

The electronic registration process for the H-1B cap was introduced by USCIS in 2020. It requires prospective petitioners seeking to file H-1B cap-subject petitions (including for beneficiaries eligible for the advanced degree exemption) to first electronically register and pay the registration fees.

For FY 2021, the number of petitions filed during the initial filing period was below the required number needed for numerical allocations. Consequently, in August 2020, additional registrations that were held in reserve were selected to meet the allocated numerical cap. The filing period for registrations selected in August ended on November 16, 2020. Some petitioners that indicated a start date after October 1, 2020, were rejected. Upon reconsideration, USCIS considers that the regulations no longer require it to reject or administratively close those petitions.

USCIS believes that this inconsistency was probably related to several factors, including the economic, political, and public health uncertainty created by the COVID-19 pandemic. The fact that FY 2021 was the first year the agency implemented the electronic registration process could have contributed to the discrepancy.

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