Employers should begin assessing their H-1B needs for fiscal year (FY) 2024 now. Each year, US Citizenship and Immigration Services (USCIS) releases dates for the H-1B cap registration processes by the end of January, with registration typically opening at the beginning of March. While awaiting USCIS’s announcement with final details for this year’s cap, employers should review the immigration status of their current and potential foreign national employees and identify any individuals for whom H-1B status might be beneficial.
Individuals who may benefit from being in H-1B status include the following:
USCIS is limited to a congressionally mandated quota of 65,000 cap-subject H-1B visas per fiscal year. By law, 6,800 of those visas are allocated as H-1B1 visas to nationals of Chile and Singapore. 20,000 H-1B visas are available in a separate allotment for foreign nationals who hold a master's or other advanced degree from a US institution of higher education.
Only those petitions filed on behalf of foreign nationals who have not previously been counted against the H-1B cap in the last six years are subject to the H-1B cap. H-1B petitions for foreign nationals employed by institutions of higher education, nonprofit research organizations, or governmental research organizations are not subject to the cap.
In 2020, USCIS implemented a two-step process for the selection of H-1B cap-subject submissions, beginning with electronic preregistration. Under this system, petitioners seeking to file H-1B cap petitions, including those who may be eligible for the advanced degree exemption, must first electronically register with USCIS during a designated registration period and pay a $10 nonrefundable fee for each H-1B registration.
To complete the registration, petitioners will be asked to provide basic information, typically including the following:
Only one registration will be permitted per beneficiary per petitioner, and no substitution of beneficiaries will be allowed.
The registration period typically begins in early March and generally lasts 14 to 21 days.
Once the registration period ends, if USCIS has received enough registrations to reach the cap, it will conduct a random selection process among the registrations received. Last year, USCIS received nearly 484,000 H-1B registrations during the registration period.
Upon completion of the random selection process, USCIS will individually notify all employers with selected registrations, and only those with selected registrations will be eligible to file an H-1B petition for the FY2024 cap.
The unselected registrations will be kept on reserve for the applicable fiscal year. If USCIS determines that it needs to increase the number of registrations projected to meet the allocation and select additional registrations, the agency will choose from those on reserve.
Petitioners may file petitions only on behalf of H-1B beneficiaries whose registrations were selected. USCIS will likely announce a filing window of up to 90 days beginning around April 1, 2023.
If USCIS does not receive a sufficient number of H-1B cap petitions to meet the quota during the initial filing period, as occurred in prior years, a second random selection will be conducted. USCIS will randomly select from among the H-1B registrations that were filed during the March registration period but not selected. USCIS will notify selected employers and their immigration counsel of the results of a second random selection. Last year, USCIS conducted a second random selection in August.
We recommend that employers begin assessing their FY2024 H-1B needs now—identifying current and potential foreign national employees for whom H-1B status might be beneficial—in preparation for the registration period. Our immigration team is prepared to help employers navigate this year’s H-1B cap season through strategic planning and preparation. By preparing early, employers can collect and organize applicable data to ensure they are ready for this dynamic multistep process.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following: