An H1B visa or status is available for “specialty occupations,” those that require theoretical and practical application of a body of highly specialized knowledge and the attainment of a bachelor’s degree or equivalent as a minimum requirement to perform the job duties. In simple terms, the position must require a bachelor’s degree in a specific field, and the individual you wish to hire must hold that degree. This has made the H1B program very popular with foreign nationals who come to the United States on student visas. In fact, “popular” is an understatement. There is an annual cap of 85,000 H1Bs. The problem is that demand significantly exceeds available H1Bs. In recent years, US Citizenship and Immigration Services (USCIS) has implemented a registration system. Let’s take a look at how the registration system works.
- Starting February 21, 2023, employers can create a myUSCIS account on the USCIS website. Be sure to create a registrant account. Your legal counsel likely has an account, but employers still need to create their own account.
- Beginning at noon ET March 1, 2023 through noon ET on March 17, 2023, employers or their attorneys can register for the H1B program. Each registration requires:
- Company name
- Foreign national’s full name (beneficiary)
- Foreign national’s country of citizenship
- Foreign national’s passport number
- A $10 fee payment
Note that employers that file more than one registration for the same employee will be rejected.
- USCIS intends to complete the selection process by March 31, 2023. Notifications can be found online by logging in to myUSCIS.gov. If not initially selected, registrations will remain pending in the event it becomes necessary for USCIS to make additional selections — due to denials or selected registrants’ failure to file applications.
- For those selected, April 1, 2023, is the earliest date to file H1B petitions. The registrant has 90 days to file the petition. Work can commence up to six months after filing, on or after October 1, 2023.
Is It Working?
This marks the fourth year of the electronic registration process. While some of the system bugs were fixed over the years, landing sufficient numbers of cap-subject H-1B visas remains elusive for most employers. Last year (FY 2023), USCIS received 483,927 H-1B registrations from 48,000+ employers and selected 127,600 registrations. By August 2022, USCIS received enough petitions to reach the H-1B cap. In the prior year (FY 2022), USCIS received 308,613 H-1B registrations and initially selected 87,500 but had to conduct two additional selections, with a grand total of 131,970 selections. The chances of selection for FY 2022 were less than 35% and dropped to under 25% for FY 2023.
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 EST on February 21st. We recommend first-time employer registrants refrain from creating a new myUSCIS account for H-1B registration until after noon EST on February 21st to avoid the system inadvertently blocking the user’s email address from future use in the H-1B registration process.
Source: National Law Review, Volume XIII, Number 58 & Number 40