For fiscal year (FY) 2023, the annual H-1B quota for 85,000 H-1Bs was met as of August 23, 2022, and on October 1, 2022, those H-1Bs that were approved as change-of-status petitions went into effect. To obtain H-1B status for the first time, a foreign national is required to go through the annual H-1B quota process, and selection is dependent on a randomized lottery system.
If selected, the petitions can be prepared with two options to activate H-1B status:
- Change of status. A change of status is a request to automatically change the status of a foreign national who is already in the United States to H-1B on October 1, 2022, or the date of the petition’s approval, whichever is later. This means that without any additional action or steps taken by the foreign national, upon the petition’s approval, the individual’s status will change from a prior nonimmigrant status to H-1B. Travel while a change-of-status petition is pending may cause the change-of-status request to be abandoned, and the petition will instead be approved for consular notification. If the foreign national travels abroad after the H-1B change of status takes effect, then he or she will be required to obtain an H-1B visa in his or her passport in order to return to the United States, unless visa exempt.
- Consular notification. Unlike a change of status that takes effect right away on October 1, 2022, or on the later date of the petition’s approval, a petition approved for Consular Notification will require the foreign national to take additional steps to obtain H-1B status. The foreign national will be required to make a new entry to the United States in order to obtain H-1B status. Unless visa exempt, an H-1B visa stamp will be required for return to the United States. H-1B status will take effect on return to the United States and will be reflected on the I-94 admission record.
Six-Year Maximum Period of Stay
Once H-1B nonimmigrant status is obtained, the foreign national will be allowed a maximum stay in the United States of six years. Time spent in the United States in prior L-1 nonimmigrant status may count against this six-year timeframe. Any time spent outside the United States while holding H-1B status can be recaptured and used to extend the end date of the six-year limit.
Exceptions to the six-year limit in H-1B status may apply if the foreign national has reached certain milestones in the green card process that would allow for extended stay in the United States while the green card application continues to process. Extensions of time beyond the six-year limit can vary based on where in the process the foreign national is, as well as the foreign national’s country of birth.
Importance of I-94
A new Form I-94, Arrival/Departure Record, will be generated on each admission to the United States. The record can be accessed and reviewed for accuracy on the U.S. Customs and Border Protection’s I-94 website for travelers visiting the United States. Remaining in the United States beyond the date listed on the I-94 can have severe consequences. Please note that each change-of-status approval notice will have a new I-94 attached to the bottom of the approval notice, which will supersede a prior I-94. This type of I-94 is issued by U.S. Citizenship and Immigration Services (USCIS) and will not be reflected in the online I-94 system.
Tax Withholding
Changes from certain nonimmigrant statuses to H-1B may require an adjustment to tax withholdings.
Ogletree Deakins’ Immigration Practice Group will continue to monitor developments with respect to these and other policies and will post updates on the Immigration blog as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.
