H-1B Fiscal Year 2024 Is Here
**This post was updated on January 30, 2023**
The H-1B program allows companies in the United States to temporarily employ foreign workers in occupations that require the theoretical and practical application of a body of highly specialized knowledge and a bachelor’s degree or higher in the specific specialty, or its equivalent. Generally, any position that requires a bachelor’s degree or higher in a specific specialty may qualify as an H-1B specialty occupation, but high-demand fields for the competitive visas include science, engineering and information technology.
There is an annual limitation of 65,000 visas, which are renewable for up to six (6) years (or longer in certain circumstances). Foreign workers who hold a U.S. master’s or doctoral degree are eligible for an additional 20,000 visas set aside exclusively for the advanced degree exemption. However, H-1B registrations/petitions are generally subject to a random electronic lottery, due to demand outpacing numerical limitations, and compete for the employment start date of October 1. Last year, U.S. Citizenship and Immigration Services (USCIS) received 483,927 H-1B registrations during the registration period, resulting in odds of selection for an individual being under one in five.
Additionally, certain employers and organizations may not be subject to the annual H-1B cap. These employers include institutions of higher education and their related or affiliated nonprofit entities and nonprofit research organizations or governmental organizations.
In 2020, USCIS implemented a new electronic registration process. USCIS now requires employers to create an account on the myUSCIS portal to register for their prospective H-1B beneficiaries. To do so, employers will need to choose a signatory to create a myUSCIS portal account.
USCIS announced on January 27, 2023, that the FY 2024 H-1B cap registration period is open from March 1, 2023, through March 17, 2023. During this period, prospective petitioners and representatives will be able to complete and submit their registrations using the online H-1B registration system.
After the close of the registration period, USCIS will conduct its initial selection process and Notices of Selection will be sent to selected registrants. After the close of the registration period, USCIS will conduct its initial selection process. Those with selected registrations will have their myUSCIS account updated to include a selection notice, which includes details about when and where to file. Selected beneficiaries will show as “Selected” in the myUSCIS portal, while all other beneficiaries are expected to show as “Submitted.”
Petitioners and their representatives must file for the selected beneficiaries within 90 days of receiving notification of selection under the lottery; last year, completed H-1B petitions for selected registrants were due by June 30, 2022. Additionally, there may be a second round of selections in late summer/early fall of this year, allowing additional registrations to be selected for the remaining numerical allocations.
What to Keep in Mind
Cap-Gap: Historically, F-1 students in Optional Practical Training (OPT) who were not eligible for or chose not to pursue an extension of their OPT (available for a qualifying degree in a science, technology, engineering or mathematics (STEM) field), have been eligible for an interim period of employment authorization, referred to as “Cap-Gap Extension” if a cap-subject H-1B petition requesting a change of status was filed on the student’s behalf and selected for processing.
Under the electronic registration system, F-1 nonimmigrants not chosen in the initial registration period in most cases will not qualify for Cap-Gap Extension because their OPT Employment Authorization Document (EAD) will have expired by the time of the second round selections. This means these nonimmigrants will need to stop working and depart the United States prior to the expiration of their nonimmigrant status. Further, selected applicants must file their cap-subject petitions prior to the expiration of the work authorization to qualify for Cap-Gap Extension.
What to Do Now
It is advisable, due to high demand and uncertainty regarding recently published H-1B rules, that employers prepare early and thoroughly to minimize the effects of any last-minute changes to either the process or relevant H-1B regulations. Employers are also encouraged to discuss alternative options to the H-1B visa with counsel early.
If your company is considering sponsoring any foreign national candidates for H-1B status this year, please reach out to us as soon as possible to discuss the FY 2024 H-1B cap registration and filing process.
For more information regarding the Fiscal Year 2024 H-1B Cap, please reach out to one of our Immigration Co-Chairs, Manuela M. Morais or Jeffrey M. Zimskind.