Refiling Permissible for FY2021 H1B Petitions Rejected Based Solely on Start Date26 Jul 2021
The U.S. Citizenship and Immigration Services (USCIS) has announced that it will accept resubmitted fiscal year 2021 (FY2021) cap-subject H1B petitions that were rejected or administratively closed solely based on the petitioning employer requesting a start date after October 1, 2020. The USCIS had taken the position that cap-subject petitions must request an October 1, 2020, start date, even if the petition was filed after that date.
With the COVID-19 pandemic and influences from economic uncertainties in 2020, the numerical quota for FY2021 H1B cap was not reached in the initial filing stage. The USCIS therefore held a second H1B lottery in August 2020 and selected additional H1B registrations. These petitioners were given until November 16, 2020, to file a corresponding cap-subject petition.
The USCIS instructions indicated that these cap-subject petitions were required to list a start date of October 1, 2020, which was the first day of FY2021. However, some petitioners assumed that this requirement did not apply to petitions being filed after October 1st, and listed a start date matching the date on the corresponding labor condition application (LCA). The USCIS rejected these H1B petition packages.
Instructions for Refiling Rejected H1B Petitions
To resubmit an eligible FY2021 cap-subject H1B petition, the petitioning employer must file the petition by September 30, 2021, which is the last day of the current fiscal year. The petition must include the FY2021 H1B cap registration selection notice, the required filing fees, and the rejection or administrative closure notice, if applicable.
More details on how to refile these petitions is available on the USCIS website.
Many petitioners who filed after October 1, 2020, naturally assumed that the requirement to request an October 1st start date did not apply to cases filed after that date. By rejecting these cases, the USCIS penalized employers for making a technical – and entirely predictable – error. It is comforting that the Biden Administration is implementing more sensible policies within the USCIS.
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