The annual H-1B cap season has begun for Fiscal Year 2024. Once again, there will be a two-step process – the registration step and then, if the registration is selected in the H-1B cap lottery, the petition step. Now is the time to start getting ready for the registration process and to review any potential H-1B petition issues.
Attorneys generally review for issues relevant to the petition during the registration step – for example, issues related to H-1B specialty occupations or job title.
This will be the fourth year that the U.S. Citizenship and Immigration Services has used the electronic registration tool as part of the H-1B lottery process. The 2019 regulations introduced this electronic registration process, requiring employers first to file registrations seeking the opportunity to file H-1B Petitions for the beneficiaries in the selected registrations. Last year, almost 500,000 registrations were filed for the 85,000 H-1B cap visas available (20,000 slots are allocated to persons with advanced degrees from eligible public or nonprofit institutions of higher education).
We are waiting for the USCIS to announce what the FY24 registration period will be. For Fiscal Year 2023, registration was open from noon Eastern Time March 1, 2022, through noon Eastern Time March 18, 2022. We expect the FY24 period to be similar.
Registrations will be for periods of employment that begin October 1, 2023, which is the first day of the federal government’s FY24.
The online registration form will request basic information about the prospective H-1B employer and employee. The form is expected to be identical to last year’s form, and will ask for the following:
- The employer’s name, Federal Employer Identification Number, and primary office address.
- The name, job title, daytime phone, and email address of the employer’s authorized representative.
- The beneficiary’s full name, date of birth, country of birth, country of citizenship, gender and passport number.
- Whether the beneficiary has earned a master’s or higher degree from a qualifying U.S. institution of higher education, and, if so, the degree and institution.
Employers must file a separate registration for each proposed H-1B worker. The current fee is $10 per registration. As we recently reported, the USCIS has proposed that this fee be increased 2,050 percent to $215 per registration; however, the fee increase will not take effect in time for the FY24 registrations.
If the number of registrations exceeds the annual cap of 85,000 visas, the USCIS will make random selections, but only from among the candidates who have been registered. If there are not enough registrations, the USCIS may continue accepting submitted registrations or open a new registration period. If the random selection process is necessary, the USCIS will notify those who filed registrations whether their registration was selected. The notification deadline for FY23 registrants was March 31, 2022.
If a registration is accepted by the USCIS, the employer will have 90 days from notification to file its actual petition. The Registration Selection notice specifies the Service Center where the petition is to be filed.
Planning for the FY24 cap
It is imperative for employers seeking H-1B employees in FY 2024 to plan ahead so that they can get their registrations filed accurately and on time. We recommend the following:
- Identify H-1B candidates. Typically, these may include the following:
- Employees working in F-1 student status with an employment authorization document (STEM or non-STEM), or derivative H-4 spouse with employment authorization document.
- TN NAFTA or E-3 Australian national professional workers who may want to pursue permanent residence in the United States.
- L-1B multinational professional level specialized knowledge employees.
- Review and finalize job offers, descriptions and salaries. It is important to make sure that job descriptions are detailed and show a direct connection between the candidate’s educational level and the offered job duties. With respect to salary, consideration should be given to offering more than the Level 1 prevailing wage if possible.
- Gather the relevant documents needed to prepare the H-1B petition.
- Remember when the caps and the registration window do not apply. Colleges and universities, nonprofit research organizations, and other related entities are exempt from the H-1B cap. Also exempt are H-1B extension petitions and H-1B “change of employer” petitions for foreign nationals who have already been counted against the cap.
Background on H-1B program
The H-1B program allows U.S. companies to temporarily employ foreign workers in professional occupations typically requiring a minimum of bachelor’s degree or higher, or its equivalent. Congress has a mandated cap of 65,000 H-1B visas (commonly known as the “regular cap”) and an additional 20,000 H-1B visas for beneficiaries who have earned a U.S. master’s degree or higher from a qualifying institution of higher education (commonly known as the “advanced degree cap”). For nearly a decade, the USCIS has received more H-1B petitions than it can accept for processing, which results in a computer-generated random selection process, known as the “H-1B Lottery.”
We strongly recommend that you contact us as soon as possible and before March 1 so that we can assist you with the H-1B registration process.
Punam Rogers and Elizabeth Smith contributed to this bulletin.