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Federal Register / Vol. 86, No. 24 / Monday, February 8, 2021 / Rules and Regulations have the potential to disturb their reliance interests.
After determining that there is not adequate time for USCIS to complete the development and thoroughly test the modifications to the H1B registration system, train staff, and conduct outreach on the H1B Selection Final Rule, DHS
also considered an alternative to delaying the H1B Selection Final Rule, i.e. having USCIS suspend the registration process for FY 2022 under 8 CFR 214.2h8iv and apply the new rule to the petition-based selection process. However, USCIS determined that suspending the registration process would have deleterious impacts on the FY 2022 selection process, as applying the new selection methodology to a petition-based selection process would be exceedingly difficult and require even more time to operationalize, particularly given COVID19 and the difficulty the agency would face in staffing up to pivot to in-person intake, sorting, and selection process. For example, last year USCIS experienced significant difficulty staffing the Service Centers with contract staff to intake petitions during the petition filing season, even considering that the registration-based selection process significantly reduced the number of petitions filed at one time. Initial hiring of sufficient contractor staff to support USCIS petition intake was incredibly difficult and, due to COVID19, data entry was significantly delayed. It took several weeks to complete data entry and reject petitions that did not meet the regulatory requirements e.g. those filed with incorrect fees, which eliminated the ability of some petitioners to refile their petitions within the assigned filing window because of this delay. Suspending the registration process entirely for FY 2022
would mean that, during the first week of April, USCIS would receive petitions from all employers seeking cap-subject H1B workers i.e., not only those whose registrations are selected in advance through a paper-based process e.g. U.S. mail, commercial courier, and would require a significant ramping up in contractor staffing. Arranging timely contractor staffing typically requires several months of advanced planning e.g. announcing positions, receiving applications, running background checks on applicants, onboarding, and training, and therefore cannot be achieved in a timely manner if USCIS
were to retain the March 9, 2021
effective date.4
4 As indicated above, until very recently, USCIS
had hoped that it would be able to modify and thoroughly test the H1B registration system in time
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Furthermore, because the selection process would be dependent on wage level, the scope of work for contractor staff would require not only initial review of petitions for completeness and correct filing fees, but also to identify the wage levels that would be used to rank them for purposes of the selection process. Petitions that do not contain required wage information would have to be rejected. Because the scope of intake work would significantly expand, the time to complete intake would be lengthened.
Moreover, reverting to a paper-based selection process would re-introduce additional uncertainties into the H1B
selection process that the electronic registration process eliminated. For example, in order to conduct the paperbased selection process, USCIS would likely have to suspend premium processing of H1B petitions which would further delay the processing of petitions.
The aforementioned problems are significantly aggravated by the COVID
19 pandemic. In particular, to ensure sufficient physical distancing of staff on premises, USCIS has already made plans to evenly distribute the H1B
petition adjudication workload for FY
2022 between four Service Centers:
California Service Center, Nebraska Service Center, Texas Service Center, and Vermont Service Center. If USCIS
were to suspend the electronic registration process in order to implement the H1B Selection Rule to conduct the FY 2022 selection process, USCIS would require a significant amount of time to staff up and train staff at the Nebraska and Texas Service Centers because those Service Centers had never previously conducted petition-based intake and selection.
Additionally, because USCIS has already made plans to evenly distribute the H1B petition adjudication workload for FY 2022 between four Service Centers, current budget and planning for the California Service Center and Vermont Service Center does not provide enough resources required for those two centers to handle the entire workload and to quickly pivot to a petition-based filing system.
Finally, the petition-based process would require time for the public to pivot and prepare H1B petitions, to implement the H1B Selection Final Rule on March 9, 2021. In reliance on that hope, and given COVID19 related challenges, as well as ongoing budget constraints, USCIS has not initiated steps to staff up for a possible suspension of the FY 2022
registration process, which would be the first in many steps required to utilize this alternative for implementing the H1B Selection Final Rule.
Therefore, this is not a viable option for USCIS.

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including obtain certified Labor Condition Applications LCAs from the U.S. Department of Labor DOL for submission during the first week of April. This change could impact DOL
operations because a far larger number of LCAs than anticipated with the registration-based system would be filed in a compressed time period, and DOL
would need to ensure they are processed in accordance with the statutory and regulatory processing timeframe of 7 working days. 20 CFR
655.730b. This is additional cost for the public to prepare and submit petitions when they do not have notice as to whether they are or will be selected. For these several reasons, USCIS determined that reverting to a paper-based selection process in order to implement the H1B Selection Final Rule during FY 2022 was not a viable alternative.
Therefore, to ensure USCIS will not be incapable of administering the H1B
cap selection process and both avoid concerns associated with reverting to a paper-based selection process, as well as applying two separate regulatory schemes to the H1B selection process, DHS believes that delaying the effective date of the H1B Selection Final Rule until December 31, 2021, will provide sufficient time to complete the selection process for the FY 2022 numerical allocations, thus avoiding unnecessary confusion and possible inequitable results as well as more time for USCIS
to modify and test its systems, train staff, and conduct public outreach.
During the period of the delayed effective date, while DHS works through the issues associated with implementation, DHS leadership will also evaluate the January 8th rule and its associated policies, as is typical of agencies at the beginning of a new Administration.
Given the longer delay, USCIS expects that it will select from among all of the registrations properly submitted toward the FY 2022 H1B numerical allocations based on the current random selection regulations that will be in effect when USCIS first begins accepting registrations or petitions toward the FY
2022 numerical allocations.
DHS also believes that December 31, 2021, while most likely to extend beyond when USCIS has determined that it has received enough petitions projected as needed to reach the FY
2022 numerical allocations, also balances the competing need to ensure that the regulated public has sufficient advance notice and certainty as to the rules that will be in effect for the FY
2023 H1B numerical allocations.

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