Plan Now For H-1B Cap Registration

U. S. Citizenship and Immigration Services (USCIS) will conduct its annual electronic registration process for the Fiscal Year (FY) 2024 H-1B cap in March 2023. Employers should start planning for cap registration now by identifying foreign nationals they intend to register for the H-1B cap lottery.

OVERVIEW

• Cap-subject U.S. employers intending to sponsor foreign nationals for H-1B status must first register each intended beneficiary electronically with USCIS during the cap registration period held in March.
• The current cap registration fee is $10 for each individual registered. The fee is solely for registration of the intended beneficiary.
  • The fee is not refunded if the registration is not selected, and it is not applied to the H-1B petition filing fee if a petition is ultimately filed for a selected beneficiary.
  • Note: USCIS has issued a proposed rule that, if implemented, will increase the registration fee substantially. However, the rule is not expected to be finalized and implemented before this year’s registration period.
• The number of registrations submitted are expected to exceed the number of H-1B visas available under the annual statutory quota.
• As in previous years, there will be a random selection process once the initial registration period closes in March.
• After USCIS conducts the random selection process, it will notify employers of selected beneficiaries. Employers may only sponsor H-1B cap petitions for individuals selected through the registration process; no substitution of beneficiaries is permitted.
• After registration selection, employers will have a 90-day period during which they may file H-1B cap petitions for selected beneficiaries.
• The 90-day H-1B cap petition filing period is expected to start no later than April 1, 2023.
• If by the end of the first filing window (June 30, 2023) USCIS has not received enough H-1B petitions to reach the annual quota, USCIS may conduct a second lottery from the pool of previously unselected registrations. USCIS will then designate subsequent filing periods until all H-1B visas are allocated to reach the annual statutory quota.

HIGHLIGHTS

• In completing the registration, employers must identify whether the intended beneficiary qualifies for the H-1B visa pursuant to either the advanced degree cap (reserved for individuals holding a U.S. master’s degree or higher in a field of study related to the offered position) or the standard H-1B cap (reserved for individuals holding a Bachelor’s degree or higher in a field of study related to the offered position).
• Employers may register multiple individuals at once, using a single online “batch” submission.
• Employers may only submit one registration per intended beneficiary in any fiscal year. If an employer registers an individual more than once in the same fiscal year, all registrations submitted by that employer for that individual will be invalidated.
• The employer’s authorized legal representative may prepare and submit cap registrations for the employer.

WHAT SHOULD EMPLOYERS DO NOW?

Employers should work with legal 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 for H-1B cap registration include, but are not limited to:

• New hires or candidates outside the U.S. who do not currently hold a valid U.S. work visa
• F-1 students completing a qualifying course of study or F-1 students currently working in the U.S. pursuant to Optional Practical Training (OPT) or STEM OPT
• J-1 interns/trainees who are currently working in the U.S. pursuant to a DS-2019 exchange visitor program
• L-1, TN, E-1, E-2, E-3, O-1, and/or other nonimmigrant visa holders who wish to change to H-1B status in the future
• Dependent spouses of current nonimmigrant visa holders who may lack work authorization

ADDITIONAL INFORMATION

Not All H-1B Petitions are Subject to the Cap
Certain individuals and employers are not subject to the annual H-1B cap or cap registration, including:

• Individuals who currently hold H-1B status and who were previously counted against the cap. In most instances, individuals who were counted against the cap in a previous fiscal year are not again subject to the annual cap. This may include petitions:
  • to extend status for current H-1B visa holders;
  • to amend H-1B status due to changes role or location changes for current H-1B workers;
  • to change H-1B employers; and,
  • for concurrent H-1B employment with an additional employer.
• Individuals who are citizens/nationals of Singapore and Chile may instead be eligible for the H-1B1 visa.
• Cap exempt organizations. H-1B cap petitions filed for employment at institutions of higher education or related/affiliated nonprofit entities, nonprofit research organizations, and governmental research organizations, are cap-exempt. H-1B petitions for employment at these institutions are not subject to an annual quota and may be filed any time throughout the year.

H-1B Categories and Annual Quotas

Cap-subject H-1B petitions generally fall within two categories:

• “Standard” petitions. The minimum educational requirement for a standard H-1B petition is a Bachelor’s degree or professionally evaluated experience equivalent. Standard cases are capped at 65,000 visas annually with approximately 6,800 reserved for nationals of Chile and Singapore.
• “Advanced degree” or “Master’s cap” petitions. The minimum educational requirement for an advanced degree H-1B petition is 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.

Historical H-1B Cap Statistics

In FY 2023

• USCIS received 483,927 H-1B cap registrations.
• Approximately 31% of registrations were submitted under the advanced degree cap.
• Over 48,000 prospective U.S. employers submitted an H-1B cap registration on behalf of an intended beneficiary.
• USCIS conducted only one random selection process after the March registration period, initially selecting 127,600 registrations, which proved enough to reach the annual quota.

In FY 2022

• USCIS received 308,613 H-1B cap registrations.
• Approximately 48% of registrations were submitted under the advanced degree cap.
• Over 37,000 prospective U.S. employers submitted an H-1B cap registration on behalf of an intended beneficiary.
• USCIS conducted three rounds of selections (in April, August, and November 2021) to reach the annual quota.

USCIS will announce specific dates for the March registration period  in the weeks ahead.     Gibney will also provide updates as they are announced. In the interim, additional information is available here.

If you have questions about H-1B cap or if you require assistance with cap registration, please contact your Gibney representative or email info@gibney.com.