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Volume XII, Number 176

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Time To Play the Numbers: H-1B Cap Registration Returns on March 1st (US)

U.S. Citizenship and Immigration Services (USCIS) recently announced the initial registration period for the fiscal year (FY) 2023 H-1B cap will open at noon EDT on March 1, 2022  and run through noon EDT on March 18, 2022.  This occurs one week earlier than last year.

This registration process will not apply to H-1B transfers (between employers) or extensions of status applications.  It will only impact new H-1B visas subject to the annual quota or “cap” of 65,000 visas (Regular cap) and an additional cap of 20,000 H-1B visas available for “specialty worker” beneficiaries with advanced degrees from US colleges or universities (US Masters cap). Exempt from the H-1B cap and this registration proposal are 6,800 H-1B1 visas, set aside from the 65,000 regular cap, for Chile and Singapore nationals.  Moreover, specialty workers who will be employed at an institution of higher education (as defined in section 101(a) of the Higher Education Act of 1965, as amended), or a related or affiliated nonprofit entity, and workers who will be employed at a nonprofit or governmental research organization, are exempt from the annual H-1B quota and this registration process.

Employers seeking H-1B workers subject to the FY 2023 cap (for terms of employment starting on October 1, 2022) will complete an online registration form that solicits basic data about the company and the prospective H-1B employee/beneficiary (including whether he or she holds a qualifying US advanced degree) and pay $10 registration fee for each beneficiary. Employers will file a separate registration for each proposed H-1B worker and, per current rules, employers will be prohibited from submitting more than one registration per H-1B worker.  The H-1B random selection process, if needed, will then be run based on the submitted registrations.  Only employers with selected registrations will be eligible to file H-1B cap-subject petitions on or after April 1, 2022.  USICS may determine it is necessary to continue accepting registrations, or open an additional registration period, if it does not receive enough registrations or subsequent petitions projected to reach the annual Regular and Masters caps.

What Happened Last Year

As we enter the third year of the H-1B registration “experiment,” it is apparent the system is less than perfect in assuring an orderly and fair allocation of available H-1B visas.  For the FY 22 Cap, USCIS received 308,613 H-1B registrations and initially selected 87,500 but had to conduct a second selection, in July 2021, of an additional 27,717 registrations. Nevertheless, due to low filing volume from the initial and second selections, in November 2021, USCIS announced it conducted a third selection of an additional 16,753 registrations. In total, USCIS selected 131,970  registrations to fill the 85,000 (Regular Cap) and 20,000 (US Masters Cap) annual quotas for new H-1B visas. The petition filing window for the third selection process closes on February 23, 2022, just days before registration commences for the upcoming fiscal year.

What’s Different This Year

We believe that it is more than likely something similar to the above will occur this year.  However, USCIS recently published proposed revisions to the H-1B registration system to minimize erroneous duplicate filings and discourage abuses of the system.  The revisions, expected to be incorporated into the upcoming registration, include a new tool designed to check for duplicate H-1B worker registrations.  In addition, the system will include a new certification which reminds employers that all H-1B registrations must be based on a “legitimate job offer” and confirmation that the registering employer has “not worked with, or agreed to work with, another registrant, petitioner, agent, or other individual or entity to submit a registration to unfairly increase chances of selection for the beneficiary or beneficiaries in this submission.”  Ideally, this warning will discourage unscrupulous registrants from gaming the system by “pooling” multiple registrations for the same H-1B worker.

What Employers Should Do to Prepare

Though cap registration will not open until March 1st, employers should work with immigration counsel to identify H-1B cap needs and gather beneficiary data as soon as possible.  This is especially important for employers sponsoring F-1 student visa holders who may be working pursuant to Optional Practical Training (OPT) that is expiring within the coming months so they can maximize eligibility for “Cap-Gap” work authorization benefits.

USCIS indicated employer registrants can create new myUSCIS online accounts beginning at noon EDT on February 21st.  We recommend first-time employer registrants refrain from creating a new myUSCIS account for H-1B registration until after noon EDT on February 21 in order to avoid the system from inadvertently blocking of the user’s email address from future use in the H-1B registration process.

© Copyright 2022 Squire Patton Boggs (US) LLPNational Law Review, Volume XII, Number 40
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About this Author

Gregory Wald, Immigration Attorney, Squire Patton Boggs Law Firm
Shareholder

Gregory Wald’s experience includes representing multinational and Fortune 500 companies and individual clients in all aspects of immigration law including nonimmigrant visas, and immigrant matters regarding multinational executives and managers, individuals of extraordinary ability and professionals.

He has appeared before the US Department of Homeland Security (DHS), US Department of Labor, US Department of Justice Executive Office for Immigration Review and various federal courts.

415 393 9828
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