The United States Citizenship and Immigration Services (USCIS) announced on Friday, January 27, 2023 that the initial registration period for the 2024 fiscal year H-1B cap will open at noon Eastern time on Wednesday, March 1, 2023.  The registration period will close at noon Eastern time on March 17, 2023.  During this registration period, employers/petitioners that wish to file H-1B petitions to employ foreign nationals in H-1B status during the 2024 fiscal year, which begins on October 1, 2023, may file online registration applications for these employees through the USCIS myUSCIS portal.  After the registration period closes, the USCIS will hold random selections or lotteries of all the registration applications received and will select a certain number among those filed.  The petitioners whose registration applications were selected may then file H-1B petitions with the USCIS for an employment start date of no earlier than October 1, 2023.  The USCIS will notify petitioners whose registration applications were selected no later than March 31, 2023.

About the H-1B Registration Process

The H-1B cap registration process was introduced in 2019 to address the fact that the demand for new H-1B petition approvals every year significantly exceeds the annual numerical limitations or quotas on these petitions, and, in particular, to relieve employers who wish to employ foreign nationals in H-1B status of the burden of having to prepare and file full H-1B petitions that may not have an H-1B number available under the quotas.  The H-1B quotas are a general quota of 65,000 (from which 6,800 must be deducted per Free Trade agreements with Chile and Singapore, leaving a total of 58,200) and a set-aside quota of 20,000 for persons with advanced degrees from qualifying United States universities (a qualifying university must be an accredited non-profit or public university).

The following are answers to some of the questions most commonly posed about the H-1B cap registration and selection processes.

What Does a Prospective H-1B Petitioner Need to do to File an H-1B Cap Registration Application?

An employer that wishes to file an H-1B petition for a foreign national employee/beneficiary that is subject to the annual H-1B numerical limitation or cap must establish a myUSCIS online account and file an electronic registration application as a “Registrant” through this portal for each person for whom it seeks to file an H-1B petition (multiple applications for different employees/beneficiaries may be filed from a single account). Employers that do not yet have an account with the USCIS will be able to create new accounts starting February 21, 2023, at noon Eastern time.  Only one application per employee/beneficiary may be filed by a petitioner/employer. Each registration application must contain the following information:

Petitioner/Employer Information

• Legal name of the petitioner/employer
• The Doing Business As (DBA) name of the petitioner/employer, if applicable
• Employer identification number (EIN) of the petitioner/employer
• Primary U.S. office address of the petitioner/employer
• Legal name, title, and contact information (daytime phone number and email address) of the authorized signatory of the petitioner/employer

Employee/Beneficiary Information

• Employee’s full legal name
• Employee’s gender
• Whether or not the employee/beneficiary has a Master’s or higher degree from a qualifying U.S. institution of higher education
• Employee’s date of birth
• Employee’s country of birth
• Employee’s country of citizenship
• Employee’s passport number

The authorized signatory of the petitioner/employer will be required to certify that all the information contained in the registration application is accurate and that the petitioner/employer intends to file an H-1B petition on behalf of the employee named in the registration if the application is selected.  A $10 fee payable to the USCIS must be paid with each registration application.  The $10 fee is not refundable. As we reported in an earlier Alert, this fee is expected to increase to $215 next year.

Detailed instructions on the H-1B cap registration process, including an instructional video, is available on the USCIS website here.   As of today, the USCIS website had not been updated for the FY2024 H-1B cap registration process, but we expect that it will be shortly.

What Happens After the Registration Application is Filed and the Registration Period Closes on March 17?

Once the registration period closes, the USCIS will calculate how many registration applications it has received.  If the agency has received fewer applications than the statutory numerical limitations or quotas, all applications will be selected.  If, as is far more likely, the USCIS determines that it has received more applications than the statutory numerical limitations or quotas, the agency will conduct a random selection process for all the applications received.  The selection process will consist of two steps.  First, an initial random selection or lottery will be held to determine the allocation of the 58,200 numbers available under the general H-1B cap. Once this is concluded, a second lottery will be held to determine the allocation of the 20,000 numbers available to persons who hold advanced degrees from qualifying  United States universities.  Only registration applications that indicate that the employee/beneficiary holds such a degree will be included in this second lottery.

The USCIS will notify all petitioners/employers who filed registration applications of the selection or non-selection of their applications by sending an e-mail message indicating that the myUSCIS account has been updated.  If the account is updated to show “Selected”, the registration application was selected and an H-1B petition may be filed.  If the account is updated to show “Not Selected”, the registration application was not selected and an H-1B petition may not be filed for the 2024 fiscal year.  An account may also be updated to show “Denied” (typically because multiple applications were received from the petitioner/employer for the same beneficiary/employee) and “Invalidated/Failed Payment” if the payment was declined or otherwise failed.

The USCIS has not yet indicated a time period during which an H-1B petition based on a selected registration application may be filed, but it is likely that this period will begin on April 3, 2023 and will last for 90 days.  A USCIS notice confirming the selection of the underlying registration application must be included in all petition filings.  There is no advantage to filing the registration earlier during the filing period and no disadvantage to filing later, as long at the application is received before noon Eastern time on March 17, 2023.

A petitioner/employer whose registration application is selected in a lottery but subsequently does not file an H-1B petition will not be penalized.  The USCIS notes that such a petitioner/employer has no way of communicating the fact that a petition will not be filed to the USCIS, but recommends that documentation concerning the decision not to be file be maintained.

What is the Likelihood of Success in the H-1B Cap Lotteries?

Historically, the percentage of registration applications selected in the H-1B cap lotteries has been approximately 30%.  For the 2022 fiscal year, the USCIS received 308,613 registration applications and initially selected 87,500 of these in the lotteries.  As a result of an unexpectedly low volume of H-1B petitions filed, the USCIS conducted second and third selection processes in July and November, respectively.  These resulted in a total of 131,970 selected registration applications for the 2022 fiscal year (42%).  For the 2023 fiscal year, the USCIS received 483,927 H-1B registration applications and selected 127,600 applications (26%).  No further lotteries were held.  Although the USCIS refers to this year’s selection process as an “initial” process in its announcements, it is unlikely that subsequent lotteries will be held this year after the two lotteries have been completed.

There has been much speculation about the number of H-1B cap registration applications that will be filed this year.  Concerns about a worsening economy and the large-scale layoffs and reductions that have recently occurred may result in a decreased demand for new H-1B petition approvals, with the result that the percentage of applications selected will increase.  The most important factor that will determine the percentage of registration applications that are selected will be how many applications are filed by the entities that have traditionally been the largest consumers of H-1B numbers.  These include some well-known IT outsourcing companies.  What is certain, however, is that, if the beneficiary/ employee has an advanced degree from an accredited United States university, the likelihood of the selection of an application will be significantly increased.  It should be noted in this regard that only degrees from accredited public or not for profit institutions will qualify a beneficiary/employee for the 20,000 quota. A degree from a for-profit or unaccredited institution will not be considered valid for this purpose.  It should further be noted that the advanced degree held need not to be relevant to the beneficiary’s/employee’s proposed H-1B position.

Our Suggestion

Employers that have identified current or prospective employees who will need or benefit from H-1B status should familiarize themselves with the various steps involved in filing an H-1B cap registration process and should be especially mindful of the time frames involved.  Such employers should also pay careful attention to the drafting of the registration application, since even a minor oversight or typographical error could cause the application to be denied or could result in erroneous information being conveyed to the USCIS that could result in the denial of an H-1B petition if the application is selected.  The attorneys at Tafapolsky & Smith are thoroughly familiar with the nuances of the H-1B cap registration process and are available to assist any employers that wish to participate in this process.