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Is your FY 2021 H-1B petition closed or rejected? Here is your second chance, USCIS Will Allow Resubmission of Certain FY 2021 H-1B Petitions rejected or Closed Due to Start Date

United States Citizenship and Immigration Services (USCIS) will now accept resubmitted fiscal year (FY) 2021 H-1B cap-subject petitions that were rejected or administratively closed because the requested start date was after October 1, 2020.

In case your FY 2021 petition was rejected or administratively closed only because your petition was based on a registration submitted during the initial registration period, but you requested a start date after Oct. 1, 2020, you may re-submit that previously filed petition, with all applicable fees, at the address below. Such petitions must be resubmitted before Oct. 1, 2021. If properly resubmitted, they will consider the petition to have been filed on the original receipt date. Upon reconsideration, we no longer believe that the regulations required us to reject or administratively close those petitions,” said the USCIS in a statement.

Petitioners can resubmit H-1B petitions that were:

  • Based on a registration submitted during the initial registration period, and
  • Rejected or closed solely due to start dates after October 1, 2020.
  • These petitions must be resubmitted with all fees attached before October 1, 2021, at one of the below addressees When resubmitting the petition, H-1B visa seekers must include their FY 2021 H-1B cap registration selection notice:
  1. USPS
    USCIS TSC
    Attn: H-1B CAP Filings FY21
    6046 N Belt Line Rd. STE 107
    Irving, TX 75038-0010
  2. FedEx, UPS, and DHL Deliveries
    USCIS TSC
    Attn: H-1B CAP Filings FY21
    6046 N Belt Line Rd. STE 107
    Irving, TX 75038-0010
  3. Form I-129/I-907 Premium Processing
    USCIS TSC
    Attn: H-1B CAP Filings FY21
    6046 N Belt Line Rd. STE 907
    Irving, TX 75038-002

When resubmitting the petition, you must include your FY 2021 H-1B cap registration selection notice. If you received a rejection or administrative closure notice for the original FY 2021 H-1B cap petition, you should include that as well. You are also encouraged to use a brightly colored cover sheet indicating that you are re-filing an FY 2021 H-1B cap case that was originally rejected or administratively closed only because your petition was based on a registration submitted during the initial registration period, but you requested a start date after Oct. 1, 2020. This will help ensure that it is reviewed upon receipt.

The H-1B process can be long and tiresome with at least one round of RFEs to respond to.  That means to get to work by the start date; petitioners need to take steps to prevent issues that may delay visa approval. Here is what we have noticed:

  • In case the beneficiary’s education is a US degree in the exact field of the H-1B job, you will need to include a credential evaluation.  This credential evaluation must take the job, the education, work experience, visa requirements, and USCIS approval trends into account.
  • In case the US DOL Occupational Outlook Handbook entry for the H-1B position does not ALWAYS require a bachelor’s degree minimum for entry into the position, you need to include additional documentation fortified with an expert opinion letter to meet specialty occupation requirements.  This letter must be written by an expert in the field of the H-1B job with experience working directly in the field and in positions of leadership wherein hiring decisions regarding the position in question and supporting positions were made.  Wage level issues can also be addressed in this letter.
  • In case the position is a consultant or for a consulting firm, including a complete itinerary of the work the H-1B beneficiary will be performing for the duration of the H-1B visa period.  This must include client and customer contact information.

POLICY BACKGROUND:

  • Ever since H-1B visa electronic registration began in 2020, petitioners register each beneficiary for the H-1B lottery online with a $10 filing fee. The new process reduces paperwork and data exchange, providing cost-saving opportunities.
  • The number of petitions filed in the fiscal year 2021’s initial filing period was too low to fill the H-1B cap. The difference was likely a result of the COVID-19 pandemic and the new electronic process. As a result, USCIS selected additional registrations from the reserve in August 2020. The filing period for registrations selected in August ended on November 16, 2020.

Looking Ahead  

  • USCIS is accepting applicable petitions immediately. To ensure eligibility and subsequent receipt and processing, employers should work with counsel to follow all USCIS instructions on qualifying FY 2021 H-1B cap case re-filings. These re-filings are due to USCIS before Oct. 1, 2021.

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