H-1B Cap Season 2023: What Employers Need to Know

What is an H-1B?

The H-1B program applies to employers seeking to hire workers in specialty occupations or as fashion models of distinguished merit and ability. A specialty occupation is one that requires, at a minimum, the application of a body of highly specialized knowledge and the attainment of at least a bachelor’s degree or its equivalent. The intent of the H-1B provisions is to help employers obtain needed business skills and abilities by authorizing the temporary employment of qualified individuals who are not otherwise authorized to work in the United States.

The law establishes certain standards to protect similarly employed U.S. workers from being adversely affected by the employment of the nonimmigrant workers, as well as to protect the H- 1B nonimmigrant workers. Employers must attest to the Department of Labor that they will pay wages to the H-1B nonimmigrant workers that are at least equal to the actual wage paid by the employer to other workers with similar experience and qualifications for the job in question, or the prevailing wage for the occupation in the area of intended employment (i.e., average wage paid to similarly employed workers in a specific occupation in the area of intended employment) – whichever is greater.

An individual who is granted H-1B status is allowed to hold H-1B status for a total of six years, unless the employer sponsors the individual for permanent residency in which case there are means to extend the individual’s H-1B status and work authorization indefinitely and beyond the six-year durational limit, if certain conditions are met.

What is the H-1B Cap and who is subject to it?

The H-1B visa category has an annual numerical limit, or cap, of 65,000 visas each fiscal year. Generally, individuals who have never in the past held H-1B status are subject to the cap. An exemption from the H-1B cap is available for beneficiaries who have earned a U.S. master’s degree or higher, until the number of beneficiaries who are exempt on this basis exceeds 20,000. Additionally, H-1B workers who will be employed by or at an institution of higher education (or its affiliated or related nonprofit entities), a nonprofit research organization, or a government research organization are not subject to the cap. Finally, individuals who have previously been counted under the cap and certain J-1 waiver recipients are not subject to the cap.

What do we need to do now?

It is important to take action now if you will wish to secure an H-1B visa for a foreign worker based on a petition subject to the annual H-1B numerical cap. The U.S. government’s fiscal year starts on October 1, but the registration for an October 1, 2023, H-1B visa starts at noon Eastern Time on March 1, 2023, and runs through noon Eastern Time on March 17, 2023. Further, the annual quota of H-1B visas is typically exhausted very quickly. For the past several years, the Immigration Service, U.S. Citizenship and Immigration Services (“USCIS”) received more than enough filings for H-1B visas, forcing the agency to conduct a random lottery to determine which of these submissions the agency would select for processing.

Although there has been heightened scrutiny of the H-1B category, we still expect that there will be significant demand in 2023 for H-1B visas, which will result in a large number of registration filings and yet another random lottery to select registrations that will determine which petitions the agency will process under the H-1B cap. Registrations not selected in the lottery will be retained by USCIS and held in reserve for USCIS to select from again, if needed.

Due to the anticipated high demand for H-1Bs and to ensure clients are able to file their H-1B registrations during the registration filing period, we encourage you to identify all potential H-1B cases NOW.

Therefore, please let us know as soon as possible if you have any current employees, new hires or prospective new hires you believe may be subject to the cap and for whom you wish to obtain H-1B status. Please also let us know of any current employees in statuses other than H-1B (i.e. L-1, E, TN, F-1 OPT/CPT) so we can help you decide whether you may wish to change their statuses to H-1B for strategic reasons.

Summary

Please remember the following:

1. Identify and start gathering H-1B cap documentation
2. The H-1B cap only applies to individuals who have not yet been counted under the H-1B cap. Individuals who already have been counted against the cap in the past are not subject to the H-1B cap
3. If your employee is working pursuant to F-1 Post-Completion Optional Practical Training (OPT), and your registration is accepted for processing, the employee’s OPT will be automatically extended to cover any gap between the end of the employee’s OPT work authorization and October 1, 2023, as long as a change of status petition is filed before the expiration of the worker’s OPT. In addition, some students may be eligible for a short period of Curricular Practical Training (CPT) toward the end of their academic programs that can serve as a partial employment bridge until their OPT is approved.
4. If you have employees who are working based on F-1 OPT in a Science, Technology, Engineering and/or Math (STEM) field, and if your company is registered under the E- Verify program, your employee’s OPT may be able to be extended for an additional 24 months and an H-1B cap filing may not be required under this year’s cap. Nevertheless, you may want to file an H-1B cap registration for such individuals this year to provide an additional opportunity for an H-1B petition to be filed if your registration is selected in the anticipated H-1B lottery.

For the H-1B cap season, petitioners will not be required to submit fully completed petitions to be considered for the annual H-1B lottery. Instead, USCIS will require petitioners first to complete an electronic registration for each worker and then, if USCIS receives more registrations than there are visas in the H-1B cap, USCIS will conduct the lottery from the registrations it receives. Selected registrants will be required to submit an H-1B petition within the period of time allotted by USCIS, which will be at least 90 days but may be longer at the discretion of USCIS.

Here are some key questions and answers about the registration process.

Q: Who can file an H-1B registration?

A: Employers or their representatives.

Q: How will a registration be submitted?

A: Registrations must be submitted electronically.

Q: What will employers and their attorneys need to do to file the registration?

A: The employer and the attorney both will be required to set up separate electronic USCIS accounts. These accounts will require two-factor authentication for access and will allow the attorney to prepare the registration for the employer’s review. The system will generate a passcode to be used between employers and their attorneys. Use of the passcode will allow USCIS to confirm that the registration was reviewed and approved by the employer and that the employer authorized the attorney to file the registration. It is also expected that a G-28 Notice of Appearance as Attorney form will be required and will be submitted with the registration. USCIS has said it will provide step-by-step instructions on how employers and attorneys will complete the registration and G-28 submissions.

Q: What will the registration require?

A: Registration will require basic information about the H-1B employer and the worker.

Q: When is the registration period?

A: The registration period starts at noon Eastern Time on March 1, 2023 and ends at noon Eastern Time on March 17, 2023.

Q: Is there a fee for filing a registration?

A: Yes, USCIS is charging a non-refundable registration fee of $10 for each H-1B registration.

Q: When will USCIS conduct a lottery?

A: If USCIS receives more registrations than there are H-1B visas, no later than March 31, 2023, USCIS will use a computer-generated random registration selection process (lottery) to select enough registrations to meet the congressionally-mandated regular cap and the U.S. advanced degree exemption for fiscal year (FY) 2024.

Q: Will registrations filed earlier in the registration period have a better chance of being selected in the lottery than registrations filed later?

A: No. Regardless of when a registration was submitted, all registrations submitted during the initial registration period will be included in the lottery if USCIS determines that a lottery will be conducted.

Q: Can we file multiple registrations for a prospective H-1B worker?

A: No. If a specific employer submits more than one registration for the same worker, all registrations filed by that employer relating to that worker will be considered invalid.

Q: When will employers know if a registration was selected in the lottery?

A: We expect the USCIS to notify registrants with selected registrations from the initial registration period no later than March 31, 2023.

Q: How will employers know if a registration has been selected?

A: USCIS will send notices electronically to all registrants with selected registrations. The notifications will be added to registration accounts. The account holder who submitted the selected registration will receive notification from USCIS (likely via email or text message) stating that an action has been added to their account, and they will have to log in to see the full notice.

Q: If a registration does not seem to have been selected, is there any hope that it may be selected later?

A: Yes, there is reason to have some hope. Because some registrations will not lead to approved H-1B cap-petitions, USCIS plans to hold unselected registrations in reserve and will conduct additional selections if necessary. This has happened each year since the electronic registration process was implemented.

Q: If a registration is selected in the FY2022 lottery, how long will the employer have to file the H-1B petition for the registered worker?

A: After such selection, employers can file their petitions as soon as April 1, 2023. USCIS will notify employers of the exact amount of time allowed for filing the H-1B petition, which will be at least 90 days, but may be longer in USCIS’s discretion.

Q: Is the employer making any attestations or certifications by filing an H-1B registration for a prospective H-1B worker?

A: Yes. Information that USCIS has released indicates that at the time of filing the electronic registration, the authorized signatory will be required to certify, under penalty of perjury, that s/he has reviewed the registration and that:

• All the information contained in the registration is complete, true and correct; and
• The authorized signatory, or the organization on whose behalf the registration is being submitted, intends to file an H-1B petition on behalf of the beneficiary named in the registration if the registration is

Now is the time to begin preparing for this year’s H-1B filings. The following information outlines the steps Nilan Johnson Lewis has set up to address the H-1B registration process and resulting H-1B petition preparation and processing for registrations that are selected in the lottery.

STEP 1: Please return the following items to us ASAP:

• All items on the NJL Checklist of Items for H-1B Analysis
• Completed Employee Visa Questionnaire
• Completed Employer Questionnaire, if you are a new client

STEP 2: Nilan Johnson Lewis will conduct a preliminary analysis of the documentation provided and we will provide our evaluation to you.

Because your company will be certifying that an H-1B petition will be filed if USCIS selects a registration you submit for a prospective H-1B worker, you will want to know before filing an H-1B registration for a prospective H-1B worker what potential challenges a petition may face so you can decide whether each H-1B petition is one your company will want to file. Therefore, to allow your company to determine if it will want to submit a registration for a particular prospective H-1B candidate, you will need a thorough assessment of factors that will impact the strength of each particular H-1B petition, including those factors that are most likely to be subject to additional government scrutiny and challenge.

If you wish for Nilan Johnson Lewis to perform this assessment, we will charge a flat fee for our legal analysis and written evaluation. This fee will include registering the petition and will be deducted from the legal fee for preparing and filing the H-1B petition if the registration is selected by USCIS in the lottery.

The factors we will evaluate will include:

• The job title;
• The job description and duties to be performed by the worker;
• The job requirements;
• The wage that is being offered to the worker;
• The likely prevailing wage and wage level that will apply to the position;
• The DOL occupational classification that will apply to the position;
• Any third party off-site employment;
• The worker’s current status;
• Any issues associated with the worker’s immigration history;
• The worker’s educational credentials;
• The U.S. equivalent of any foreign educational qualifications;
• Worker eligibility for U.S. master’s cap exemption;
• Timing issues associated with a worker’s eligibility for “cap gap” work authorization; and
• Whether a worker may be eligible for a STEM extension of his/her work

Based on our analysis, we will include in our evaluation our quote for what our final flat legal fee will be for preparing and filing the H-1B petition if the registration is selected. Our flat fee for a particular H-1B petition will be within our flat fee range for H-1B Cap petitions, and will include a reduction for the assessment fee previously incurred. Then, based on the information gained from our analysis and included in our evaluation, you will decide if your company will file a registration on behalf of a particular worker.