The Clock Is Ticking: H-1B Cap Season Is Here - Updated December 2023

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Each year at this time we kick off H-1B Cap Season by working with U.S. employers to prepare for registration in the upcoming H-1B Cap Lottery. U.S. employers interested in sponsoring foreign nationals for specialty (professional) occupations have this opportunity only once per year for a limited time period.

Who: US Employers

The H-1B program allows U.S. companies to employ foreign nationals in “specialty occupation positions.” These positions require the theoretical or practical application of a body of highly specialized knowledge and a bachelor’s degree or higher (or foreign equivalent) in a specific or closely related field as a minimum for entry into the occupation. This tremendously popular visa program applies to almost any U.S. employer hiring professional-level workers, including in computer science/software/tech, engineering, finance, health care, economics, science and more. Often, U.S. employers sponsor H-1B visas for foreign students already employed with Employment Authorization Documents (EADs) in F-1 OPT/STEM OPT status or they sponsor professionals residing or working abroad who are needed in the U.S.

What: Annual H-1B Cap Registration and Lottery

Beginning on Oct. 1, the start of the federal fiscal year, 65,000 new H-1B visas become available with an additional 20,000 visas for H-1B beneficiaries who possess advanced degrees from U.S. academic institutions. Because there are more applicants than available visas each year, USCIS conducts a lottery to determine which employers may sponsor specifically identified foreign nationals for H-1B status.The H-1B Cap Lottery requires employers to register within a limited time period, typically in March, followed by a random selection process (lottery). Employers whose registrations are selected in the lottery then have a 90-day window in which to file the selected H-1B petitions. Regardless of when the H-1B petition is filed and/or approved, the employment start date is not earlier than Oct. 1 of that calendar year.

When: Now Is the Time to Prepare

USCIS traditionally announces the H-1B registration dates in February and conducts the H-1B lottery during a 10-day period in March. In order to be eligible to apply for and obtain H-1B status as part of the lottery, it is necessary to register during that 10-day period. When the window closes, it is no longer possible to register in the H1-B cap lottery until the following fiscal year. Accordingly, we recommend that U.S. employers that wish to sponsor any foreign nationals for an H-1B status in 2024 engage counsel now. A Fox Rothschild attorney can work with you to identify individuals for whom cap-subject H-1B sponsorship will be needed, determine the foreign worker’s eligibility, assess H-1B viability for the proposed specialty occupation position and prepare for the upcoming H-1B cap lottery registration period. Starting early is especially crucial for first-time U.S. H-1B employer-sponsors.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations. Attorney Advertising.

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