H-1B Cap Reached and Notification Process Complete: What it Means for Employers and Foreign Workers
On March 27, 2023, USCIS declared that it had received enough electronic registrations during the registration period to fill the H-1B numerical allocations for this fiscal year. All prospective petitioners with selected registrations have been notified by USCIS that they are eligible to submit an H-1B cap-subject petition for the beneficiary listed in the relevant selected registration.
What is the H-1B Cap?
Employers in the US are able to hire foreign workers for specialty occupations that call for specific knowledge and abilities thanks to the H-1B visa type. The H-1B cap refers to the annual restriction placed on the number of H-1B visas that the US government may grant.
The annual H-1B ceiling is set at 85,000 visas, with 65,000 reserved for candidates holding bachelor’s degrees or higher, and 20,000 earmarked for candidates holding master’s degrees or higher from US institutions.
Since there are typically far more applicants than there are visas available, employers must register the candidates intended to be sponsored in the government’s online myUSCIS system and a random lottery is conducted to determine which candidates each employer may file a petition on behalf of.
The FY 2024 Lottery
The registration period for FY 2024 ran from March 1, 2023 through March 20, 2023. Then, using correctly submitted electronic registrations, the H-1B selection procedure was carried out. The only people qualified to submit H-1B cap-subject petitions are those with selected registrations.
According to regulation, USCIS determines the number of petitions required to reach the H-1B ceiling for a particular fiscal year by using historical data regarding approvals, denials, revocations, and other pertinent variables. USCIS then determines the number of registrations that must be chosen in order to get the anticipated number of petitions needed to comply with the numerical restrictions when calculating this number. This computation takes into account previous non-filing rates for potential petitioners whose registrations were chosen but who did not submit a petition based on those chosen registrations.
Last year, USCIS picked 127,600 of the 483,927 H-1B registrations for FY 2023 to fill the numerical quota for that year. For FY 2024, USCIS announced on March 27, 2023 that the agency received enough electronic registrations during the registration period to reach the fiscal annual H-1B numerical allocations. USCIS announced that the registrations that were properly submitted to reach the cap were randomly chosen, and the agency has informed all prospective petitioners with selected registrations that they are qualified to submit an H-1B cap-subject petition for the beneficiary listed in the relevant selected registration. The announcement did not indicate how many H-1B registrations were received for FY 2023 or how many registrations were selected in order to fill the cap. Based on low selection rates being shared among attorneys, it appears that the number of registrations received this year may have been much higher than any prior year.
What Happens Next?
H-1B cap-subject petitions for FY 2024 may be filed with USCIS beginning April 1, 2023 based on a valid, selected registration. Petitions must be filed no later than June 30, 2023 and must be filed at the Service Center specified in the selection notice. Beneficiaries present in the United States in another visa category may be eligible to request a change of status to H-1B, while those outside the United States must request consular processing, see https://www.rnlawgroup.com/videos/change-of-status-vs-consular-processing-for-h-1b-cap-filing/
Beneficiaries present in the United States with dependent family members may also need to include an application for a change of status to H-4 to ensure that family members remain in status.
F-1 students with expiring Optional Practical Training (OPT) may be eligible for extended OPT time commonly referred to as cap gap, see https://www.rnlawgroup.com/f-1-students-with-opt-and-the-h-1b-lottery-how-does-cap-gap-work/
Petitions that are approved will take effect from October 1, 2023.
Are All H-1B Petitions Subject to the Cap?
There are some types of H-1B applicants who are exempt from the cap and can apply for an H-1B visa at any time of the year without having to worry about the cap being met. Here are a few instances:
- applicants looking for an extension of their H-1B status or a change of employer who have previously been included in the H-1B cap;
- In accordance with free trade agreements with such nations, Singaporean or Chilean nationals are eligible to apply;
- applicants who will work at a cap-exempt entity, such as a government research organization or a nonprofit institution with ties to a university.
While certain categories are exempt from the H-1B cap, it’s crucial to remember that they are still bound by other H-1B restrictions and standards.
Employers with employees who were not selected will need to look into other avenues for hiring foreign staff. Even though this information may be disheartening, there may still be other visa choices accessible. We are committed to assisting employers in navigating the convoluted immigration process and identifying options that satisfy their business requirements.
By: Emily Neumann, Managing Partner
Emily Neumann is Managing Partner at Reddy & Neumann, P.C. with over 15 years of experience practicing US immigration law providing services to U.S. businesses and multinational corporations. Emily has helped transform the firm from a solo practice to Houston’s largest immigration law firm focused exclusively on U.S. employment-based immigration. She received her Bachelor’s degree in Biology from Central Michigan University and her Juris Doctorate degree from the University of Houston Law Center. Emily has been quoted in Bloomberg Law, U.S. News & World Report, Inside Higher Ed, and The Times of India on various hot topics in immigration. She is a member of the American Immigration Lawyers Association and Society for Human Resource Management.
In today’s global economy, being able to navigate the immigration process is critical to your business success. If your registration has been selected in this year’s lottery, our immigration lawyers are available to guide you through the H-1B filing process. Please contact us online, call our Houston business immigration attorney office directly at 713-953-7787, or schedule a consultation.