Now is an ideal time to ensure that employers and their legal representatives have their myUSCIS accounts updated and ready for the lottery registration. Employers can begin creating new accounts as early as noon on February 21, but must wait until March 1 to enter beneficiary information. Employers and their representatives will be able to register multiple beneficiaries in one on-line session. Attorneys can prepare and edit a draft registration, but employers must electronically approve the information in the registration.  In addition, the registration has a two-factor authentication system, which requires the attorney to register their G-28 on the system and send a passcode to the employer, who then reviews and approves the G-28 electronically.  Once the attorney is designated as the legal representative for a specific registration, the attorney can pay the $10 fee.

Although the registration period closes on March 18, it is possible that CIS may close the registration period earlier.  Therefore, clients who hope to have the option of filing an H-1B Visa Cap-Subject Petition should submit their registration within the first few days of the registration period. For FY 2022, CIS received 308,613 H-1B registrations—far exceeding the available 65,000 visas for foreign highly-skilled workers with a bachelor’s degree and 20,000 visas for the master’s cap.

With these odds employers may be wondering whether filing as many registrations as possible could increase their chance of getting selected? To the contrary, employers are discouraged from registering with CIS unless they are certain to proceed with a Petition if selected.  Otherwise, civil and criminal penalties may result, and employers may be barred from participating in future H-1B lotteries. This is critical because CIS is scrutinizing certain “specialty occupations,” especially those in the IT industry. Thus, determining in advance of the registration period whether a position could even qualify for an H-1B visa is key. Moreover, recent high-profile enforcement activities have targeted employers alleged to have used H-1B visas for fraudulent purposes.

Given that employers may only have a short period of time from actual notification to the opening of the H-1B filing period, employers are encouraged to work with their attorneys to prepare in advance of the lottery. If selected for the lottery, employers will have to submit a Labor Condition Application (LCA/Form ETA-9035E/9035) to the Department of Labor (DOL). Filing this in advance not only gives employers salary information for the H-1B position, but also ensures that their FEIN is already verified with DOL.  Ideally, employers should notify their attorneys around mid-February that they may need H-1B visas for FY 2023.