It's Time to Prepare for H-1B Visa Cap Season

​Editor's Note: U.S. Citizenship and Immigration Services announced that the initial registration period for the fiscal year 2023 H-1B cap will open March 1 and run through March 18.

Employers interested in sponsoring high-skilled foreign talent are approaching an important time of year: H-1B visa cap season.

The electronic registration process to sponsor someone for a new H-1B visa is expected to start in early March.

Employers should prepare for the registration period by collecting documents and information from potential H-1B employees. Registration is expected to last two or three weeks.

"We recommend that employers review upcoming hiring needs as soon as possible to determine if new H-1B petitions will need to be filed under the fiscal year 2023 quota for potential employment start dates of Oct. 1, 2022," said Melina LaMorticella, an attorney in the Portland, Ore., office of Tonkon Torp. "All new H-1B petitions are subject to an annual quota, or cap, of 65,000 regular H-1B visas and an additional 20,000 H-1B visas reserved for holders of advanced degrees from accredited U.S. universities. New cap H-1B petitions are not required for H-1B extensions and most H-1B changes of employer."

Elizabeth Baker, an attorney in the Detroit office of Miller Canfield, explained that although the dates for the electronic registration period have not yet been announced, registration likely will be open for a minimum of 14 days in March. "Last year, the initial registration period was open from March 9, 2021, to March 25, 2021," she said.

Preparing for Registration

This will be the third year that U.S. Citizenship and Immigration Services (USCIS) has used electronic registration to kick off the H-1B selection process, and by most accounts, it has gone well.

The new system, which requires employers to submit minimal information for each visa requested and file full H-1B petitions only if they are selected in the registration lottery, was meant to simplify the H-1B visa filing process and cut costs for employers. Only those randomly selected from the registration pool will be eligible to file petitions.

"Employer registrants must create an online account with USCIS and register both the employer's corporate information as well as the information of the employee whom the employer will sponsor," Baker said.

A $10 fee is required for each registration, along with information such as the employer's name, mailing address and tax identification number; the worker's name, date of birth, country of citizenship, gender, passport number and education level; and whether the worker has attained a master's degree or higher from a U.S. university.

Yvonne Toy, an attorney with Corporate Immigration Partners in San Francisco, noted that if the employee is expected to receive a qualifying master's degree in May 2022, "we would list that degree at the time of registration to afford that person the opportunity to get a higher chance of selection."

The employer must certify, under penalty of perjury, that the information provided in the registration is accurate and complete, and that there is a real intention to file an H-1B petition on behalf of the named employee if selected. That's meant to cut down on substitution petitions or employers submitting many registrations for the same person. If more than one registration for the same person is found, USCIS will consider all registrations filed by that employer for that person invalid. The agency stated that it is not evaluating the quality of registrations for merit but simply eliminating duplicate submissions and choosing registrations at random.

By April 1, employers will be notified if their registrations were chosen in the lottery for the 85,000 H-1B visas available for the next fiscal year. That starts an expected 90-day period for selected employers to submit full H-1B petitions.

Next Steps

Although the registration system is straightforward and requires only basic information about the company and foreign national employee, organizations should analyze each case to ensure it is ultimately approvable.

Steps to take before registration begins include:

• Putting together a list of people for whom a registration will be submitted.
• Preparing detailed job descriptions to be used in the eventual petition.
• Getting started on preparing labor condition applications (LCAs). "A labor condition application is not required to be completed prior to the electronic registration process, but if the employee's registration is selected, the employer must include a certified LCA with the H-1B petition filing," Baker said.

Toy said there was a drop in requests for evidence (RFEs) last year, compared with the years of the Trump administration. "It was a relief to see that the current administration is going back to the way it used to be, providing more certainty in the process," she said. "We expect fewer RFEs again this year due to policy changes like the recission of certain H-1B adjudication policies."