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Refiling Permissible for FY2021 H1B Petitions Rejected Based Solely on Start Date

2 min read
US EB-5 Visas

The U.S. Citizenship and Immigration Services (USCIS) has declared that it will accept resubmitted the fiscal year 2021 (FY2021) cap-subject H1B petitions that were rejected or administratively closed solely based on the petitioning employer requesting a beginning date after 1st October 2020. The USCIS had taken the position that cap-subject petitions should request an October 1, 2020, start date, even if the petition was filed after that date.

With the COVID-19 pandemic and impacts from financial uncertainties in 2020, the numerical quota for the FY2021 H1B cap was not reached in the initial filing stage. The USCIS, therefore, held a second H1B lottery in August 2020 and chose extra H1B registrations. These petitioners were given until 16th November 2020, to file a corresponding cap-subject petition.

The USCIS guidelines indicated that these cap-subject petitions were needed to list a beginning date of 1st October 2020. Which was the primary day of FY2021. In any case, some petitioners assumed that this requirement did not apply to petitions being filed after October 1st. And listed a beginning date matching the date on the corresponding labor condition application (LCA). Moreover, the USCIS rejected these H1B petition packages.

Instructions for Refiling Rejected FY2021 H1B Petitions

To resubmit an eligible FY2021 cap-subject H1B request, the petitioning employer should file the petition by 30th September 2021. Which is the last day of the current fiscal year. The petition should include the FY2021 H1B cap registration selection notification. The necessary filing fees, and the rejection or administrative closure notice, if applicable.

[Employers May File H-2B Petitions for Returning Workers for FY 2021]


Numerous petitioners who file 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 punished employers for making a technical – and completely predictable – error. It is consoling that the Biden Government is executing more sensible policies within the USCIS.

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