Employer registration for the Fiscal Year 2023 (FY 23) H-1B “cap” lottery opens at noon, eastern standard time, on March 1, 2022. The registration will run until noon, eastern standard time, on March 18, 2022. The US Citizenship and Immigration Services (USCIS) H-1B registration process is rooted in the annual limits on first-time H-1B petitions. The online mechanism is used to narrow the number of applicants, consistent with the annual limits.

The H-1B visa classification is widely used by US employers to sponsor degreed professionals. This category is commonly relied upon by employers of IT professionals and others in STEM fields. However, the category encompasses a wide range of other positions which require at least a bachelor’s degree in a specific field or narrow range of fields. Employers must identify their needs now to sponsor H-1B employees and initiate evaluation and preparation in order to register their case(s) before the registration deadline of March 18, 2022.

Historically, the demand in the H-1B category has greatly exceeded the annual limits. Thus, for many years, the USCIS has selected cases for processing through an annual lottery process. The USCIS instituted the registration component of the selection process in FY 21 as part of an overhaul aimed at simplification and efficiency. The registration process saves employers considerable time and money, as the H-1B case preparation is placed on hold until the lottery is completed.

The exclusively online registration system has remained largely unchanged since it began in FY 21. Also unchanged is the annual allocation of 20,000 “advanced degree” H-1B cap exemptions and 65,000 “regular” H-1B cap numbers. The prior administration’s regulatory changes which would have prioritized lottery selection based upon wage levels were set aside following legal challenges.

Timetables

In addition to the registration period starting March 1, 2022 and ending March 18, 2022, other key dates and timelines are as follows:

  • The USCIS will conduct the lottery selection and post the results in the registrant’s online account by March 31, 2022.
  • The USCIS will permit at least 90 days for selected applicants to file an H-1B petition for the listed beneficiary. Applications cannot be submitted prior to April 1, 2022.
  • The registration is for FY 23, which begins October 1, 2022. The petitions cannot request a starting validity date prior to October 1, 2022.

Next Steps and Best Practices

The following are steps employers should take to facilitate the H-1B application process:

  • Identify individuals within their workforce or potential workforce who a) qualify for H-1B sponsorship and b) fall under the H-1B cap. This step must be taken quickly with questions resolved through qualified sources of legal advice. Note: Registrations are for a specific named individual. Employers cannot register without a specific name and related details nor can they later substitute candidates.
  • The registration process requires limited information about the sponsoring employer and foreign national, as well as a $10 (US) fee per submission. Despite the simplicity, employers are cautioned to register only the foreign nationals they genuinely intend to sponsor, as applications are attested to under penalty of perjury.
  • It is best to undertake an initial assessment of H-1B eligibility and identify potential issues or complexities. This review should include: degree requirements and evidence of qualifications, wage requirements, current status, and employment authorization expiration dates.

Expectations for FY 2023 H-1B Cap Lottery

The chances of being selected in the lottery largely depend upon the number of registrations received. Foreign nationals with a US master’s degree (or higher) have better odds, as they are eligible for 20,000 additional spots. In FY 22, the USCIS received over 300,000 registrations for the total 85,000 cap numbers. However, following the first lottery selection in March 2021, the USCIS conducted two more FY 22 lottery selections from the FY 22 lottery registrations. Due to COVID-driven changes in workforce needs, employers opted not to pursue H-1B petitions for a larger than expected number of selected registrations. Thus, the USCIS conducted two additional selections for FY 22 to utilize available cap numbers.

The scenario is likely to be quite different for FY 23, with employers turning to immigration sponsorship to fill employee shortages and demands in technology, healthcare, and many other sectors. However, despite the odds, this remains a valuable option for employers. With limited exceptions, the H-1B cap limits apply only the first time a foreign national is sponsored in the H-1B category. Thus, once this hurdle is overcome, the uncertainty is removed. The online registration process has significantly reduced the effort required to participate in the H-1B lottery, minimizing the cost of seeking this valuable benefit.

Employers and others interested in H-1B immigration options may contact Steptoe’s immigration practice.

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