FY 2023 H-1B cap season has begun: What you need to know

Constangy, Brooks, Smith & Prophete, LLP

Constangy, Brooks, Smith & Prophete, LLP

The H-1B cap season is here for Fiscal Year 2023. Once again, there will be a two-step process – the registration step and then, if the registration is selected, the petition step.

This will be the third year that the U.S. Citizenship and Immigration Services has used the electronic registration tool. The 2019 regulations required employers to register electronically before submitting cap-subject H-1B petitions. The regulations also reversed the order by which the USCIS selected petitions under the H-1B cap, making it easier for candidates to be selected if they had advanced degrees from U.S. institutions.

On January 28, the USCIS announced that this year’s H-1B cap registration process will be the same as the process used last year. This year’s registrations will be for periods of employment that begin October 1, 2021, which is the first day of the federal government’s FY 2023. Registration for FY 2023 will be open from noon Eastern Time on March 1 through noon Eastern Time on March 18, 2022. Employers or their legal representatives may create their online accounts now.

The online registration form will request basic information about the prospective H-1B employer and employee. The basic form is expected to be identical to last year’s form, and will ask for the following:

  • The employer’s name, Federal Employer Identification Number, and primary office address.
  • The name, job title, daytime phone, and email address of the employer’s authorized representative.
  • The beneficiary’s full name, date of birth, country of birth, country of citizenship, gender and passport number.
  • Whether the beneficiary has earned a master’s or higher degree from a U.S. institution, and if so, the degree and institution.

Employers will file a separate registration for each proposed H-1B worker at a fee of $10 per registration.

If the number of registrations exceeds the annual cap of 85,000 visas, the USCIS will make random selections, but only from among the candidates who have been registered. If there are not enough registrations, the USCIS may continue accepting submitted registrations or open a new registration period. If the random selection process is necessary, the USCIS will notify those who filed registrations by March 31 whether their registration was selected.

If a registration is accepted by the USCIS, the employer will have 90 days from notification to file its actual petition. The Registration Selection notice specifies the Service Center where the petition is to be filed.

There is some overlap between the registration and petition steps because attorneys generally review certain issues relevant to the petition during the registration step. For example, they normally review any issues related to H-1B specialty occupations or job title during the registration step.

Biden withdraws wage-based selection regulations

The good news for H-1B workers and their employers is that, on December 22, the Biden Administration withdrew the wage-based selection regulations of the Trump Administration.

As we previously reported, the outgoing Trump Administration published regulations that aimed to prioritize higher-wage earners for H-1B visas. The regulations were scheduled to take effect on March 9, 2021. However, the Biden Administration delayed the effective date of the regulations until December 31. Meanwhile, a federal court struck down and vacated the regulations. The regulations were formally withdrawn on December 22.

Planning for the FY 2023 cap

It is imperative for employers seeking H-1B employees in FY 2023 to plan ahead so that they can get their registrations filed accurately and on time. We recommend the following:

  • Identify H-1B candidates. Typically, these may include the following:
  • Review and finalize job offers, descriptions and salaries. It is important to make sure that job descriptions are detailed and show a direct connection between the candidate’s educational level and the offered job duties. With respect to salary, we recommend offering more than the Level 1 prevailing wage if possible.
  • Gather the relevant documents needed to prepare the H-1B petition.
  • Remember when the caps and the registration window do not apply. Colleges and universities, nonprofit research organizations, and other related entities are exempt from the H-1B cap. Also exempt are H-1B extension petitions and H-1B “change of employer” petitions for foreign nationals who have already been counted against the cap.

Background on H-1B program

The H-1B program allows U.S. companies to temporarily employ foreign workers in professional occupations typically requiring a minimum of bachelor’s degree or higher, or its equivalent. Congress has a mandated cap of 65,000 H-1B visas (commonly known as the “regular cap”) and an additional 20,000 H-1B visas for beneficiaries who have earned a U.S. master’s degree or higher (commonly known as the “advanced degree cap”). For nearly a decade, the USCIS has received more H-1B petitions than it can accept for processing, which results in a computer-generated random selection process (the “H-1B Lottery”).

Punam Rogers, Elizabeth Smith, and Jennifer Yeaw contributed to this bulletin.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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