By: Mia Batista, Steven R. Brouillard, and Victoria Ma
Seyfarth Synopsis: H-1B Registration is approaching! Employers should identify any current employees and employment candidates who may require H-1B visa sponsorship.
This Legal Update is intended to assist employers with understanding the general process of the H-1B electronic registration program and identifying any current employees and employment candidates who may require H-1B visa sponsorship. We recommend that employers identify any such H-1B registration candidates as soon as possible.
Background – Regular Cap and Master’s Cap
Congress set the current annual regular quota for the H-1B visa category at 65,000 (commonly known as the “regular cap”), meaning that USCIS can approve up to 65,000 H-1B visa petitions each fiscal year. For the 2024 fiscal year (beginning October 1, 2023, and ending September 30, 2024), the regular cap quota remains at 65,000. Of the 65,000 H-1B visas, up to 6,800 visas are reserved for nationals of Chile and Singapore pursuant to free trade agreements with those countries.
In addition to the 65,000 quota for the regular cap, there is an additional quota of 20,000 H-1Bs reserved for registrants holding a U.S. master’s degree (or higher). To be eligible for the “master’s cap,” the employee must have completed a master’s degree (or higher) awarded by an accredited public or not-for-profit U.S. institution prior to the petition filing date.
Once USCIS receives 65,000 registrations to meet the regular cap and 20,000 H-1B registrations towards the master’s cap, the Service will conduct two separate selections to identify the cap registration winners. USCIS will first apply the random selection process to all cap registrations received under the regular cap to identify the initial 65,000 selections. Any master’s cap registrations not selected in the first lottery will be eligible for selection in a separate H-1B master’s cap lottery, effectively being granted two opportunities at H-1B lottery selection.
H-1B Cap Registration and Selection Statistics from Last Year
For FY 2023, USCIS received 483,927 H-1B registrations and initially selected 127,600 registrations, resulting in an approximate 26% chance of selection overall. Both the regular cap and the master’s cap were exhausted last year during the electronic registration. In other words, USCIS did not conduct a second round of selections in FY 2023. By contrast, in FY 2022, USCIS received 308,613 H-1B registrations and initially selected 87,500 registrations. For FY 2022, USCIS conducted two additional selection rounds in addition to the electronic registration period in March 2021. It is difficult to predict how quickly the H-1B quota will be exhausted.
Electronic Registration Process
In 2020, USCIS implemented an electronic registration system for all cap-subject H-1B petitions, requiring employers to register cap cases electronically. Prior to their electronic registration system implementation, employers prepared entire H-1B petitions to file on April 1st of each year and then awaited confirmation from USCIS to determine if the H-1B petition was selected, frequently taking several months to receive confirmation.
The electronic registration system is more efficient. Employers will typically learn of the results, by the first week of April. Last year, the initial registration period ran from March 1, 2022 to March 18, 2022. After the registration period closed, USCIS conducted registration selection for both the regular cap and master’s cap, and then announced the results by March 31, 2022. Employers were invited to file H-1B petitions for the selected registrations between April 1, 2022 and June 30, 2022.
USCIS will continue to utilize electronic registration for FY 2024’s H-1B cap season. The registration period will open on March 1, 2023 at noon EST and close on March 17, 2023 at noon EST. Employers should be prepared to submit critical data points associated with each H-1B registration once the registration period opens in March. USCIS intends to notify employers of the cap H-1B registration selections by March 31, 2023. Employers must have an account online with USCIS as a “registrant” to submit cap H-1B registrations. If an employer needs to create a new registrant account online, February 21, 2023 is the earliest time to create a new registrant account.
The earliest cap H-1B filing date for FY 2024 will likely be April 3, 2023, based on this being the first business day in April. Thus, we anticipate that the 90-day H-1B filing period will likely run from April 3, 2023 to July 2, 2023.
The current cap H-1B registration fee is $10.00 per registered beneficiary payable to U.S. Department of Homeland Security. While USCIS is proposing to increase the cap H-1B registration fee from $10 to $215, the registration fee will remain at $10 per registered beneficiary this year payable to U.S. Department of Homeland Security.
Upon electronic confirmation of selection, an employer will have 90 days to file a cap-subject H-1B petition for the specified beneficiary. An employer can request a start date of no earlier than October 1, 2023. Again, it is likely that USCIS may begin accepting petitions for FY 2024 on April 3, 2023 because April 1, 2023 is a Saturday. This is critical especially for registrants’ whose current employment authorization is expiring before April 1, 2023. Please reach out to your Seyfarth representative for more information.
Current Employees and Potential Candidates
Employers should consider filing H-1B petitions for any current employees who hold F-1 student status and who will thus need H-1B status to continue working once their F-1 Employment Authorization, also known as Optional Practical Training (OPT) or STEM OPT, expires. In addition, any pending hires should be assessed to determine whether an H-1B will be required for continued employment, including those in J-1 academic programs with limited practical training time as well as those who currently reside outside the United States without any other employment authorization options. Moreover, employers may also want to consider any current employees who hold dependent family member visa status (i.e., H-4, L-2, and E-3). Further, any current employees who hold TN, E-3, or L-1 status and who are beginning the green card process may benefit from converting to H-1B status.
Exceptions to the Annual H-1B Cap
With some exceptions, current H-1B workers are not subject to the annual cap, including H-1B workers extending their status, changing from one H-1B employer to another, changing the terms of existing H-1B employment, or filing for a second (concurrent) H-1B position. In addition, foreign nationals seeking to work for an institution of higher education, for a related or affiliated nonprofit entity, or for a nonprofit research organization or a government research organization are not subject to the H-1B cap.
Alternatives to the H-1B Visa
In some cases, there may be alternatives to the H-1B visa. If an employee falls into one of the following categories, an H-1B cap petition may not be needed:
- Citizens of Canada or Mexico who are eligible for a TN visa. Please note, however, that not all Canadian or Mexican employees will qualify for TN status.
- Citizens of Australia, Chile, or Singapore.
- The spouse of an L visa or E visa holder, who is eligible for spousal employment authorization incident to their status.
- The spouse of an H-1B visa holder, who is eligible for spousal employment authorization (EAD).
- J-1 nonimmigrants who have at least 18 months of academic training available as of April 1, 2023.
- With limited exceptions, H-1B employees who have held H-1B status at any time with a cap-subject employer.
- A foreign national who is married to a U.S. citizen and has received or will receive an Employment Authorization Document in connection with the pending green card process.
- Certain other foreign nationals who may qualify for an O, E, or L visa.
Although an employee may fall into one of the aforementioned categories, there may be reasons why employers should file a cap-subject petition on an employee’s behalf. As such, please contact your Seyfarth representative to determine if you should register an individual listed in one of these categories.
Employers should act now to identify and begin H-1B processing for candidates or current employees who require H-1B sponsorship. If an employer misses the registration period or filing deadline for an employee who requires H-1B sponsorship, the employee can lose legal status in the United States, including permission to work. Seyfarth is continuing to monitor for announcements and updates related to the H-1B electronic registration process and will publish updates to this alert accordingly. Should you have any questions, please e-mail the authors directly or your Seyfarth Shaw contact.