The H-1B visa program allows U.S. employers to hire foreign national workers for specialty occupation jobs. U.S. Congress has established an annual numerical limit or "cap" of 65,000 visas for individuals in the general H-1B category and 20,000 for individuals who possess U.S. advanced degrees.
U.S. Citizenship and Immigration Services (USCIS) has implemented an electronic registration process for the H-1B cap. Under this process, prospective employers (also known as registrants), and their authorized representatives, who are seeking to employ H-1B workers subject to the cap, complete a registration process that requires only basic information about the prospective employer and each requested worker. USCIS will open an initial registration period for a two-week period each fiscal year. The H-1B selection process is then run on properly submitted electronic registrations. Only those with selected registrations are eligible to file H-1B cap-subject petitions.
On January 27, 2023, USCIS announced that the initial registration period for the fiscal year 2024 (October 1, 2023 through September 30, 2024) will open at noon Eastern time on March 1, 2023, and run through noon Eastern time on March 17, 2023. During this period, prospective employers and representatives will be able to complete and submit their H-1B registrations online.
Prospective H-1B cap-subject employers or their representatives are required to use a "myUSCIS" online account to register each beneficiary electronically for the selection process and pay the associated $10 USCIS fee for each registration submitted on behalf of each beneficiary. Prospective employers submitting their own registrations (U.S. employers and U.S. agents, collectively known as "registrants") will use a "registrant" account. Registrants will be able to create new accounts beginning at noon Eastern time on February 21, 2023.
Representatives may add clients to their accounts at any time, but both representatives and registrants must wait until March 1, 2023 to enter beneficiary information and submit the registration with the $10 fee. Prospective employers or their representatives will be able to submit registrations for multiple beneficiaries in a single online session. Through the account, they will be able to prepare, edit, and store draft registrations prior to final payment and submission of each registration.
If USCIS receives enough registrations by March 17, 2023, it will randomly select registrations and send selection notifications via users' myUSCIS online accounts. If USCIS does not receive enough registrations, all registrations that were properly submitted in the initial registration period will be selected. USCIS intends to notify account holders of the selection results by March 31, 2023. An H-1B cap-subject petition may only be filed by a petitioner whose registration for the beneficiary named in the H-1B petition was selected in the H-1B registration process.
Certain "cap-exempt" employers are not subject to the H-1B cap and may submit an H-1B petition at any time without having to follow the registration process. Cap-exempt employers include: (1) institutions of higher education (universities/colleges), (2) non-profit organizations affiliated with institutions of higher education, (3) non-profit research organizations, and (4) government research organizations. In addition, individuals who have previously been counted towards the H-1B cap within the past six years may qualify for a cap-exemption. This includes petitions to extend H-1B status, petitions to change the terms of employment for an H-1B (amendment), petitions to change employers, and petitions to allow current H-1B workers to work concurrently in additional H-1B positions. A limited exemption also exists for an H-1B beneficiary who is not directly employed by a cap-exempt employer, if the H-1B beneficiary will spend the majority of their work time performing job duties at the location of a cap-exempt entity and the duties directly and predominately further the essential purpose, mission, objectives or functions of the cap-exempt entity.
Employers and prospective workers who are interested in the H-1B program should contact experienced immigration counsel for advice and assistance. Buchanan's Immigration team has extensive experience with all aspects of the H-1B visa program, including the cap registration process.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
