USCIS is expected to continue using its electronic registration process for fiscal year (FY) 2023 H-1B cap season. The registration period will run in March 2022 for a minimum of 14 calendar days.
H-1B CAP FY ‘23 Registration Overview
- Cap-subject H-1B employers intending to sponsor H-1B workers must first register each intended beneficiary electronically with USCIS during the registration period.
- There is a $10 fee for each registrant.
- If the number of registrations exceeds the number of H-1B visas available under the annual quota as expected, USCIS will randomly select a sufficient number of registrants projected to reach the FY2023 H-1B cap.
- The Department of Homeland Security recently withdrew a final rule that would have made the registration selection wage-based. Thus, as in previous years, there will be a random selection process once the initial registration period closes in March.
- After the first round of selection, Employers will have a 90-day window during which to file H-1B cap petitions for selected registrants. The petition filing period is expected to start no later than April 1, 2022.
- Employers may file an H-1B cap petition for selected registrants only; no substitutions are permitted.
- If by the end of the first filing window USCIS has not received enough petitions to reach the annual quota, they may designate subsequent filing windows until all the visa numbers are allocated.
- In completing the registration, employers must identify whether an individual qualifies for an H-1B pursuant to the advanced degree cap (reserved for individuals holding a U.S. master’s degree or higher) or the standard H-1B cap.
- Employers may register multiple individuals at once, using a single online “batch” submission.
- An employer may only submit one registration per intended beneficiary in any fiscal year. If an employer registers a beneficiary more than once in the same fiscal year, all registrations submitted by that employer for that beneficiary will be invalidated.
- The registration may be prepared and submitted by the employer’s authorized representative.
What Should Employers Do Now?
Employers should work with counsel now to identify current or prospective employees who may require an H-1B petition to work in the U.S. and to take appropriate steps to ensure timely online registration of identified candidates. Potential beneficiaries include, but are not limited to:
- New hires from overseas.
- F-1 students completing a qualifying course of study or currently working pursuant to Optional Practical Training.
- Some L-1 visa holders.
- TN, E-3 and other nonimmigrant visa holders who wish to change to H-1B status in the coming year.
- H-4 dependent EAD holders.
H-1B Categories and Annual Quotas
H-1B petitions generally fall within two categories:
- “Standard” Cap Petitions. The minimum educational requirement for a standard H-1B petition is a bachelor’s degree or its equivalent. Standard cases are capped at 65,000 visas annually with approximately 6,800 reserved for nationals of Chile and Singapore.
- Advanced Degree Petitions. The beneficiary must hold an advanced degree, defined as a master’s degree or higher, awarded by a U.S. university. USCIS allocates an additional 20,000 H-1B visas for U.S. advanced degree holders each fiscal year.
H-1B CAP FY ’22 – Numbers
- USCIS received 308,613 H-1B CAP registrations.
- Approximately 48% of registrations were submitted under the advanced degree cap.
- Over 37,000 U.S. employers submitted an H-1B CAP Registration on behalf of their employees.
- USCIS conducted three round of selections (in April, August and November) in an effort to reach the annual quota.
H-1B Petitions Not Subject to the Cap
As a reminder, certain H-1B petitions are not counted against the annual cap, including:
- Individuals in H-1B status previously counted against the cap. In most instances, individuals who were counted against the cap in a previous fiscal year are not subject to the current cap. This includes extensions of status for current H-1B visa holders, changes in the terms of employment for current H-1B workers, and most petitions for changes of H-1B employers and petitions for concurrent employment in a second H-1B position.
- Petitions filed by cap exempt organizations. H-1B petitions for employment at institutions of higher learning or related/affiliated nonprofit entities, nonprofit research organizations, and governmental research organizations are cap-exempt, and may be filed any time throughout the year.
USCIS will publish more information about the cap registration process in the weeks ahead.