What is the H-1B Program?
The H-1B program allows U.S. employers to temporarily employ foreign workers in occupations that require the theoretical and practical application of a body of highly specialized knowledge and a bachelor’s degree or higher in the specific specialty, or its equivalent. H-1B specialty occupations may include fields such as architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts.
Congress set the current annual regular cap for the H-1B category at 65,000 and 20,000 for persons with a U.S. Master’s degree or higher. H-1B cap-subject petitions, may not be filed unless based on a valid and selected registration for the beneficiary named in the petition.
When is the H-1B Electronic Pre-Registration Period?
On January 28, 2022, USCIS announced that it officially plans to open the electronic H-1B registration process for petitioners seeking to submit H-1B cap-subject petitions for FY 2023. USCIS announced that employers may submit H-1B cap registrations from noon (Eastern) on March 1, 2022 through noon (Eastern) on March 18, 2022. USCIS further announced that those registrants without a USCIS registrant account may create an account starting noon (Eastern) on February 21, 2022. Once the registration period closes, USCIS will announce selection under the initial lottery no later than March 31, 2022.
What is the current selection process?
The current version of the H-1B cap-registration program was first implemented in 2020 for FY 2021. The program allows registrants to electronically submit a registration by providing basic information such as employer name, employer identification number (EIN), employer mailing address, employer contact information, as well as general and biographic information for the prospective beneficiary. Once the registration period closes, USCIS conducts two lotteries, initially selecting the allocated number of H-1B visas for the general H-1B lottery, followed by a second lottery for the H-1B Master’s Cap lottery.
Is the H-1B Program right for you?
The use of the registration process has been popular among U.S. employers, as it is commonly used to hire recent foreign graduates particularly in the Science Technology, Engineering and Math (“STEM”) fields. Last year, employers submitted 308,613 registrations for FY 2022. Registrants should consider that the registration process does not consider the merits or ultimate approvability of an application once the beneficiary gets selected. Therefore, employers would be well advised to review potential issues of eligibility prior to the submission of a registration. For those employers new or unfamiliar to the process, it is advisable to seek counsel immediately to discuss the process.
Not all H-1B Petitions are considered “Cap-Subject”
Foreign nationals already in H-1B status, who are extending status or changing employers are not necessarily considered “Cap-Subject”. Additionally, universities and related nonprofit entities, nonprofit research organizations and government research organizations may be considered exempt from the cap. These U.S. employers are able to file H-1B Petitions at any time during the year despite the fiscal year limit.
