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USCIS Conducts Third H-1B Cap Lottery and Build Back Better Legislation Passed by the House of Representatives Includes Significant Relief for Those Seeking to Immigrate to the U.S.

November 22, 2021

On November 19, U.S. Citizenship Services (USCIS) announced it had completed a third H-1B lottery selection for the fiscal year 2022 cap. This is the third H-1B lottery selection this year. USCIS allows for 85,000 H1-B cap-subject petitions on an annual basis, including 65,000 reserved for individuals in possession of a bachelor's degree and 20,000 for those in possession of a U.S. Master’s degree only. The first selection occurred in March 2021 and USCIS announced it had received over 308,000 H-1B registrations. A second lottery selection was conducted in July 2021 and it was announced on November 19 that it needed to conduct a third lottery in order to reach the fiscal year H-1B 2022 numerical limitations. Those selected in the third lottery are permitted to file petitions by February 23, 2022. 

The Build Back Better Act (H.R. 5376), which heads to the Senate for reconciliation and review includes immigration provisions which include:

  • Creation of a temporary ‘parole program’ – allows foreign nationals who entered the U.S. prior to January 1, 2011 and have continuously maintained a residence in this country to receive parole with employment authorization and international travel permission for an initial period of up to five years. These individuals would also be eligible for Real-ID compliant driver's licenses. Permission to extend parole status would be granted to September 30, 2031, and the Department of Homeland Security would not be allowed to share information relating to parole applications with U.S. Immigration and Customs Enforcement. The parole program would commence 180 days after enactment of the bill, or May 1, 2022, whichever is earlier. While immigration advocates were hoping for a complete and unrestricted legalization program, this alternative does fall short of full legalization but is expected to affect 7 million undocumented people currently in the U.S.
  • Unused immigrant visa numbers to be recaptured – foreign nationals selected in the Diversity Immigrant Visa Program between fiscal years 2017 and 2021 would be permitted to reapply if refused a visa or denied admission because of presidential executive orders or if they are unable to complete applications due to COVID-19 restrictions. 
  • Adjustment of status – applicants unable to apply for adjustment of status due to per-country backlogs and quota delays would be permitted to pay an additional fee of $1500 (plus $250 for each derivative family member) in advance of their priority date (date on the immigrant visa waitlist) would become ‘current,’ or available. Additionally, the bill would permit beneficiaries of approved family-based visa petitions with priority dates more than two years old to apply for adjustment of status for an additional filing fee of $2500.
  • Allows beneficiaries of approved EB-1, EB-2, or EB-3 visa petitions with priority dates more than two years old payment of $5000 and allowance to apply for adjustment of status.
  • Beneficiaries of approved EB-5 petitions with priority dates more than two years old to apply for adjustment of a filing fee of $50,000.
  • Adjustment of status provisions would take effect 180 days after enactment or on May 1, 2022, whichever is earlier.

The Build Back Better bill is now being forwarded to the Senate where a debate will ensue and further, the Senate will determine whether provisions of the bill are appropriate for budget reconciliation. Whether or not the bill will land on President Biden’s desk for signature is unclear at this point. We will keep you apprised of any developments as they occur. 

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