H-1B Cap Filing Information FY 2023

This memo is intended to provide information related to the H-1B Cap season commencing with registration in March 2022 for new H-1Bs effective on October 1, 2022. These are known as Fiscal Year 2023 (FY23) filings as the USCIS fiscal year for 2023 begins on October 1, 2022. This memo is provided for informational and discussion purposes only. It does not act as a substitute for legal advice on an individual basis.

Regulatory H-1 Cap and the Lottery System

The so called “Cap” we refer to applies to all NEW H-1B filings where the sponsored employee has NOT previously been counted against the Cap and where the employer is not somehow Cap-exempt (some employers or employment situations permit Cap exemption). Since the demand for H-1B visas is so high, USCIS conducts an annual lottery to determine who will have the opportunity to file for H-1B status under the cap each year. Once an employee has been counted against the Cap, they can apply for and extend their H-1B status outside of the annual lottery process, until they have used their maximum allowance of six years in H-1B status (or longer if they have an approved I-140).

There are essentially two Caps (i.e., statutory limits on how many new H-1Bs USCIS can be issued each year). The first is the standard Cap for regular H-1B filings (referred to as the “Regular Cap”). There are only 65,000 Regular Cap H-1B filings permitted per fiscal year, and of this number, 6,800 available spaces have been reserved for citizens of Chile and Singapore. The second Cap is technically a Cap exemption, but since it is limited in number and ultimately runs out each fiscal year, thus creating a separate Cap. This is in reference to an additional 20,000 H-1Bs set aside for individuals who graduate from a U.S. Master’s degree program (or higher-level education) that meets certain criteria (referred to as the “Master’s Cap”).

Beginning in 2020, USCIS implemented an electronic registration system for H-1B Cap selection. Unlike years prior, where petitions were fully prepared and filed within the first five business days in April, employers or their authorized representatives now register potential H-1B employees online and pay a $10 registration fee for each proposed H-1B worker. The H-1B Cap registration period for 2022 (FY23) will be open from March 1, 2022 to March 18, 2022. If the number of registrations received exceeds the quota, which is expected, USCIS will conduct a lottery to randomly select the number of registrations needed to reach the H-1B numerical limit. We have no control over the lottery and whether a case makes it into the lottery. The process is entirely random.

After the initial registration period closes, USCIS will electronically notify employers and their legal representatives of the results no later than March 31, 2022. Selected registrations are those who have “won” the H-1B lottery and will be eligible to file a cap-subject H-1B petition with USCIS no earlier than April 1st and no later than 90 days after selection. Only the employer listed on the registration will be eligible to file a petition for the foreign national selected in the lottery. Registrations not selected in the lottery will remain on reserve for the applicable fiscal year. If USCIS does not receive and approve enough H-1B petitions to fulfill the statutory quota from the initial lottery, it will run subsequent lotteries and select additional registrants from those on reserve to meet the annual cap. In 2021, USCIS ran a second lottery in August and a third lottery in November to satisfy the H-1B Cap for Fiscal Year 2022, but we have no way of knowing if we will see a similar pattern this year.

Please visit the USCIS website to learn more about the H-1B Electronic Registration Process.

Our Process and Anticipated Timeline

We ask employers to notify us of any H-1B cap registrants as soon as possible to ensure timely registration. We will evaluate each case to ensure it satisfies all H-1B criteria and gather any information or documentation needed to complete the registration and prepare the USCIS petition, if selected.

The H-1B Cap lottery is ultimately a two-step process:

STEP 1:

– Our team gathers the necessary information to evaluate the case and prepare the registration.

– Assist employers in creating a proper USCIS Registrant Account, if needed (new accounts can be created starting at 12:00 PM EST on February 21, 2022).

– Draft registrations and provide step-by-step instructions for the employer to verify submissions on behalf of the company.

– Ensure timely registration of all potential H-1B workers during the designated registration period, open from 12:00 PM EST on March 1, 2022 to March 18, 2022 at 12:00 PM EST.

– USCIS conducts the initial lottery and confirms selections no later than March 31, 2022.

– Our team notifies employers and registrants of lottery results as soon as possible once selection notices are issued by USCIS.

– For those selected in the lottery, we will proceed to Step 2. For those not selected in the initial lottery, we will discuss next steps on a case-by-case basis.

STEP 2:

– If selected in the lottery, we will have a 90-day window to file the actual H-1B petition with USCIS. We will request any outstanding documents or additional information needed to prepare the H-1B petition when we notify you of the results and file with USCIS as soon as possible.

– We expect Premium Processing Service to be an available option for H-1B Cap filings, which would provide a decision from USCIS within 15 calendar days of receipt. The USCIS Premium Processing fee is currently $2,500, plus applicable legal fees. Under regular processing, H-1B petitions are currently taking between 4-8 months to be adjudicated. The decision to file under Premium or Regular Processing only applies to the USCIS filing.

– H-1B petitions filed as a Change of Status under the Cap will take effect on October 1, 2022, or as of the date of approval, whichever is later.

As described above, if the statutory caps are not met through the initial lottery, USCIS will conduct subsequent lotteries until the numerical limit for the fiscal year is reached. If subsequent lotteries take place, USCIS will select additional registrants who remain on reserve from the initial registration period. This process will be automatic, no further action will be required for registrants not selected initially to be considered for subsequent lotteries for this fiscal year. We will monitor the status of the H-1B Cap throughout the year and notify clients if additional registrants are selected.

To stay informed throughout the process, please sign up to receive our News Alerts, (enter your email at the bottom of the page), which will also include reminders about any upcoming webinars.

Contact us for a worry-free and efficient process for handling your foreign national employee status issues.