H-1B Fiscal Year 2023 Is Here

The Basics

The H-1B program allows companies in the United States to temporarily employ foreign workers in occupations that require the 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 which 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. But, H-1B registrations/petitions are generally subject to a random electronic lottery due to demand outpacing numerical limitations and compete for employment start date of October 1. For Fiscal Year 2022, U.S. Citizenship and Immigration Services (USCIS) received 308,613 H-1B registrations between March 9 and March 25, 2021. This was a 12.5% increase over the FY 2021 filing season.

Electronic Registration

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.

For Fiscal Year 2023, H-1B electronic registration for employers will open at noon EST on March 1, 2022, and run through noon EST on March 18. During this period, prospective petitioners and representatives will be able to complete and submit their registrations using our online H-1B registration system.

The Process

After the close of the registration period, USCIS will conduct its initial selection process. Notice 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 accounted 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.” As was the case last year, April 1, 2022 will be the earliest date on which H-1B cap-subject petitions may be filed. Petitioners and their representatives must file for the selected beneficiaries within 90 days of receiving notification of selection under the lottery. As was the case last year, we expect 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) and 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 both 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.

Please contact our office as soon as possible to see if we can assist with any H-1B Fiscal Year 2023 Petitions. For more information regarding the Fiscal Year 2023 H-1B Cap, please reach out to one of our Immigration Co-Chairs, Manuela M. Morais at manuela.morais@stevenslee.com, or Jeffrey M. Zimskind at jmz@stevenslee.com

This News Alert has been prepared for informational purposes only and should not be construed as, and does not constitute, legal advice on any specific matter. For more information, please see the disclaimer.

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