USCIS to permit re-filing of certain rejected H-1B petitions for FY 2021

On June 23^rd, USCIS announced that it will accept resubmitted H-1B cap-subject petitions for Fiscal Year 2021 that were rejected solely because the requested start date was after October 1, 2020.  A welcome announcement that will bring the opportunity for H-1B visas for an untold number of people, this comes on the heels of Joseph & Hall’s victory on this very same issue in the case Acquia v. USCIS.  In this case, we sued on this very issue, alleging that the practice of rejecting petitions solely for a start date after October 1 was unlawful, and while the case never received a final decision from a judge, the agency quickly reopened and approved the cases for our clients who suffered rejections because of this practice.

The issue essentially boils down to the fact that the agency was requiring employers to break the law to have their petitions accepted.  The second selection of H-1B registrants permitted filings up to November 16 of last year – a month and a half beyond October 1.  Naturally, then, if a petition was filed on November 14^th, an H-1B selectee’s start date could not possibly be October 1.  This placed employers in the situation where they had to either fill out an application with false information, and then sign that petition saying that all information was correct under penalty of perjury, or fill out the application with the proper information and risk their petition being rejected for a proper start date after October 1.

This announcement is a welcome change, though one must wonder the harm employers suffered with this authorization coming out over seven months after the last application period ended rather than shortly after the issue was identified.