US Citizenship & Immigration Services (“USCIS”) just announced that the initial registration period for the fiscal year (“FY”) 2024 H-1B cap will begin at 12pm ET on March 1, 2023, and run through 12pm ET on March 17, 2023. During this registration period, prospective petitioners and representatives will be able to submit their H-1B registrations using their myUSCIS online account and pay the required $10 fee for each registration submitted on behalf of each beneficiary. Registrants will be able to create new accounts beginning at noon EST on February 21, 2023.

USCIS will randomly select H-1B petitions for processing (i.e., through a lottery), if they receive enough registrations by March 17, 2023. USCIS expects to send selection notifications to account holders by March 31, 2023. The H-1B cap-subject petition may then be filed by a petitioner whose registration for that particular beneficiary was selected.

Each registration submitted will receive a confirmation number to be used to track registrations only—this number cannot be used to track case status at the Case Status Online page. USCIS has listed additional information, including step-by-step registration instructions, on the H-1B Electronic Registration Process page. USCIS has noted that if the service does not receive enough registrations, “all registrations that were properly submitted in the initial registration period will be selected.”

We will continue to monitor updates to the FY 2024 H-1B cap and update this post accordingly.

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 1, 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 1).

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 THE F-1 OPT EXPIRES BETWEEN APRIL 1 AND BEFORE 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, 2023, 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 ARE SITE VISITS?

USCIS will conduct random site visits on H-1B sponsors. Therefore, with respect to H-1B petitions, petitioners should:

Be vigilant with record keeping, public access files, etc.;
Make sure that all H-1B fees are paid by the sponsor without seeking reimbursement from the foreign national; and
Withdraw petitions for foreign nationals they no longer employ.

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, 2023, or later, if the case is not approved by October 1, 2023 (unless they currently hold another valid work visa valid past September 30th).

Good luck to all applicants!