H-1B Cap Quickly Approaching for FY 2023

While H-1B cap efforts remain underway for fiscal year (FY) 2022, employers may want to push forward now with preparations for FY 2023 H-1B cap season. (According to U.S. Citizenship and Immigration Services (USCIS), the petition filing period for registrations that were selected on November 19, 2021, is currently open and will close on February 23, 2022.) Employers have one opportunity each year to see H-1B visa numbers for employees who will be first-time applicants. However, as brand-new H-1B visas are subject to an annual quota, and demand for H-1Bs exceeds the annual supply, all requests for brand-new H-1B visas must go through a registration and lottery process.

Overview of the H-1B Visa Program

The H-1B visa program permits U.S. companies to employ foreign nationals in specialty occupations (i.e., positions that require the theoretical or practical application of a body of highly specialized knowledge, such as that of an engineer, economist, or scientist). The specialty occupation must require a bachelor’s degree or higher (or its foreign equivalent) in a specific, closely-related field.

Each year, an annual quota of 65,000 new H-1B visas becomes available with an additional 20,000 visas set aside for H-1B beneficiaries who possess advanced degrees from U.S. academic institutions. Of the 65,000 available H-1B visas, 6,800 are reserved for citizens of Chile and Singapore (e.g., H-1B1 visas).

Some H-1B petitions, including those for foreign workers already in H-1B status and those filed on behalf of new workers to be employed by institutions of higher education or related nonprofit entities, nonprofit research organizations, or government research organizations, are exempt from this lottery process. Employers that do not satisfy one of these enumerated H-1B cap exemptions must participate in the H-1B cap registration and selection process.

What Can Employers Expect From the FY 2023 H-1B Lottery Process?

The H-1B cap lottery process, which changed in spring 2020 to now include a registration selection process, now has three progressive stages:

(1) registration period;

(2) random selection process (i.e., the lottery); and

(3) petition filing period for registrations that were successfully selected in the lottery.

Subsequent cycles of stages 2 and 3 are completed until USCIS determines it has received a sufficient number of petitions to reach the congressionally mandated H-1B quotas for that fiscal year.

USCIS recently announced that for FY 2023, the registration window will remain open for 18 days—from March 1, 2022, at noon EST until March 18, 2022, at noon EST. If USCIS receives enough registrations to utilize the annual allocation of H-1B visas, which is very likely, it will conduct a random selection process and provide notification of selection through users’ my.USCIS.gov accounts. The registration period and random selection process are both conducted to allow time for employers to begin filing petitions for the successfully selected registrations with USCIS on April 1, 2022.

What Can Employers Do Now to Prepare for the FY 2023 H-1B Cap Season?

Employers can identify individuals for whom H-1B sponsorship will be needed as soon as possible. Employers or representatives can also create H-1B registrant accounts on my.uscis.gov.

Important Dates for H-1B Cap FY 2023

March 2022	USCIS will hold the online registration period for FY 2023 H-1B cap cases. Attorneys and employers will be able to access the myUSCIS H-1B registration tool to register their candidates.
	USCIS will conduct the random selection process (i.e., the “lottery”) for the H-1B regular cap and master’s cap.
	USCIS will notify employers and their representatives about selection results via users’ accounts on myUSCIS.gov.
No earlier than April 1, 2022	Employers will have 90 days from April 1, 2022, to file H-1B petitions.
Subsequent months	USCIS may conduct additional rounds of the random selection process, as needed, to ensure it reaches the congressionally mandated cap of brand new H-1B visas for FY 2023.

USCIS’s H-1B electronic registration process page provides information on how to create an H-1B registrant account.

Ogletree Deakins’ Immigration Practice Group will continue to monitor developments with respect to the H-1B cap process and will post updates on the firm’s Immigration blog as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.