It’s that time of year again! No, not Valentine’s Day; its H-1B Cap Season! US Citizenship & Immigration Services (“USCIS”) recently announced that the initial registration period for the fiscal year (“FY”) 2023 H-1B cap will begin at 12pm ET on March 1, 2022, and run through 12pm ET on March 18, 2022. During this registration period, prospective petitioners and their representatives will be able to submit their registrations using their myUSCIS online account and pay the required $10 fee for each registration submitted on behalf of each beneficiary.

USCIS will then randomly select registrations (i.e., through a lottery), as the U.S. Department of Homeland Security withdrew the rule that would have given priority in the H-1B selection process to higher-salaried positions. If USCIS receives enough registrations by March 18, 2022, the agency will conduct the lottery and send selection notifications via users’ myUSCIS online accounts. USCIS will notify applicants no later than March 31, 2022, of the outcome of the initial selection. An H-1B cap-subject petition may then be filed by a petitioner whose registration for that beneficiary was selected in the H-1B registration process. If a case is selected in the lottery, employers will be permitted to file full H-1B petitions starting April 1, 2022, and for 90 days thereafter. If sufficient applications are not received as a result of the initial draw, there may be additional draws later in the year.

Employers and foreign nationals should start preparing their paperwork now, so all is ready for the registration period beginning March 1, 2022. By way of background, we have a review of some frequently asked questions about the H-1B.

FREQUENTLY ASKED QUESTIONS ABOUT THE H-1B CAP

The following will provide background and guidance on some common questions surrounding the H-1B cap:

1. WHAT IS THE H-1B?

The H-1B is a nonimmigrant visa for foreign nationals who will be employed temporarily in a “specialty occupation,” or as fashion models of distinguished merit and ability. A specialty occupation is defined as one that requires a bachelor’s degree in a specific field, or the equivalent experience, in order to perform the duties of the position offered. For example, architects, graphic designers, accountants, lawyers, engineers, and computer programmers are all specialty occupations and, therefore, likely to be eligible for H-1B visas. H-1B petitions are granted for up to three years at a time, for a maximum of six years. H-1B visa holders may also be sponsored for permanent residence which could allow for an extension of the H-1B petition past the six years.

Under the current law, there is an annual limit of 65,000 new H-1B’s. This is referred to as the “H-1B Cap.” There are an additional 20,000 visas available for current or prospective employees who possess an advanced degree earned at a US accredited educational institution. This is referred to as the “Master’s Cap.” New H-1B’s become available on October 1st, which is the first day of the government’s fiscal year. USCIS will only start accepting petitions for a new H-1B six months prior to the beginning of their new fiscal year (i.e., April 1st).

2. TO WHOM DOES THE CAP APPLY?

The cap applies only to those individuals who have never had an H-1B visa or who have been outside the US for more than a year after having held H-1B status in the US.

3. CAP-GAP: WHAT IF A GRADUATING STUDENT’S F-1 OPT EXPIRES BETWEEN APRIL 1 AND OCTOBER 1?

With respect to students on F-1 OPT, whose OPT expires after April 1 and before October 1, if the case is picked in the lottery after the registration period closes, as long as the H-1B petition is filed prior to the expiration of the OPT, the foreign national's work authorization will be automatically extended until October 1, by virtue of the H-1B filing. To ensure the foreign national does not fall out of status:

The foreign national must take the H-1B receipt notice to their school to receive a new I-20 indicating the extension of the OPT;
The foreign national MUST remain in the US between the expiration of the OPT and October 1 in order to have continued work authorization. If they travel internationally during this time, they will abandon the change-of-status and may not be able to return to the US until September 21, 2022, if the case is approved;
If the student’s OPT expires before the employer has the receipt for filing the case, they will have to stop working until a receipt notice for the H-1B arrives indicating that they were selected in the lottery and the case was filed. The student may only resume working once the receipt notice has been issued; and
If the H-1B is not approved by October 1, the foreign national will have to stop working if their OPT has expired.

4. WHAT ABOUT J-1’s?

J-1’s do not get the same cap-gap extension as students on F-1 OPT.

5. WHEN CAN FOREIGN NATIONALS START WORKING IF SELECTED?

Although an H-1B petition may be approved before October 1, the foreign national may not commence work with the sponsor until October 1, 2022, or later, if the case is not approved by October 1, 2022 (unless they currently hold another valid work visa valid past September 30th).

6. WHAT ABOUT INTERNATIONAL TRAVEL?

For any foreign national in the US in a valid status at the time the H-1B change-of-status petition is filed, there will be consequences if they travel internationally while the change-of-status petition is pending with USCIS. Therefore, foreign nationals should contact an experienced immigration attorney regarding travel before any plans are booked to discuss the consequences. See also the COVID-19 impact to travel below.

7. ARE H-1B’S MORE LIKELY TO RECEIVE REQUESTS FOR EVIDENCE?

H-1B petitions filed for certain occupations are more likely than others to receive Requests for Evidence (RFE’s). The requests are focused on whether the foreign national is being offered a “specialty occupation,” i.e., a position that is complex enough to require a specific degree. Additionally, junior positions are also under significant scrutiny.

8. IS COVID-19 AFFECTING THE H-1B CAP?

For now, USCIS is processing H-1B petitions as before with little impact to the case. If anything, regular processing may be a little bit slower than before. There remains, however, a continuing impact on the foreign national’s ability to travel and get a new H-1B stamp once the case is approved. As we previously reported, embassies and consulates around the world are slowly starting to resume routine visa processing but, because of limited resources and country conditions related to COVID-19, there remain significant delays and backlogs in processing visa applications.

We will continue to provide updates throughout the lottery season. Wishing you all the best of luck or maybe I should say, “May the odds be ever in your favor!”