H-1B Cap Season: What is it?

The U.S. Citizenship and Immigration Services (USCIS) issues a limited number of H-1B visas to individuals who have never held H-1B status each year (the congressionally mandated “cap” of 65,000 H-1B visas [commonly known as the “regular cap”] plus an additional 20,000 for beneficiaries who have earned a U.S. master’s degree or higher [commonly known as the “advanced degree exemption”]), which become available each year on Oct. 1, which is when the federal fiscal year resets.  Because there has been a historic trend of more people applying for the visas than the number available, USCIS has established an electronic random lottery process to select who may prepare and submit a petition for an H-1B visa.  Registration in the electronic lottery system is far less burdensome to both employers and USCIS than the previous process, which involved preparing and filing a full and complete H-1B petition during the first week of April (the earliest possible date to file an H-1B petition under the cap).

Lesson: If an H-1B Registration is not properly submitted during the mandated timeframe, it will not be possible to obtain an H-1B visa this fiscal year.  This means you should contact us to begin preparing the information/documents necessary for the H-1B cap lottery process as soon as possible to ensure we are prepared to proceed during the limited filing window.

 

The H-1B Cap Registration System

The H-1B Cap registration system is an online pre-registration system used by USCIS to run a random lottery process to select beneficiaries and petitioners to apply for an H-1B visa subject to the cap.  As in prior years, the lottery allocation will be based on random selection, however, this year USCIS will implement a “beneficiary centric” selection approach.  Under this new rule, each beneficiary entered into the system will be given a single lottery registration ‘ticket’, regardless as to how many employers submit them in the lottery.[1]  USCIS has indicated that the purpose of this new approach is to prevent any one individual from gaining an unfair advantage by having multiple employers submit multiple registrations on their behalf.

This H-1B Registration period is required to be open for a minimum of 14 calendar days each fiscal year in March: This year the registration period will open on March 6, 2024 and will remain open until noon eastern time on March 22, 2024.

 

What Information Will be Required for Each Electronic Entry?  

The registration process does not require a significant amount of information; only basic company/petitioner information and beneficiary/individual information is required.  Also new to this year is the requirement that the beneficiary be in possession of a valid passport or valid travel document and that this information, as entered into the electronic system, matches the information on the H-1B visa petition itself, if that registration is selected for processing.

However, we do not encourage employers to submit registrations for prospective H-1B visa employees without at least a preliminary examination of the job offered, the wages offered and the beneficiary’s credentials in order to ensure that, if selected, the H-1B petition would be approvable.  In addition, this affords an opportunity to review the company’s and the individual’s specific circumstances, current visa expiration dates, and other circumstances which could impact how, and when, an H-1B petition is processed for that specific individual, if selected in the lottery.

Lesson:  Although there is no legal restriction on a company submitting an electronic registration on behalf of a prospective H-1B visa employee, that submission does create an electronic record and could be subject to review and analysis in the future.  As such, we recommend companies allow us to perform at least a basic analysis of the position offered and the beneficiary’s credentials to ensure that the visa is potentially viable and the registration is legitimate, prior to submission.

 

Online Registration Process:

USCIS uses the myUSCIS online portal for the electronic registration system.  In order to submit an electronic registration, employers must create a “H-1B Registrant” account and attorneys must create a “Legal Representative” account.  New for this year are USCIS “Organizational Accounts”, which will launch in February 2024.

USCIS has indicated that it is introducing Organizational Accounts in order to improve process flow and case management for users.  In addition to allowing multiple individuals within an organization, such as a company or other business entity, and their legal representatives to collaborate on H-1B registrations, it will also be possible to use these accounts to file I-129 H-1B petitions as well as I-907 premium processing requests on H-1B petitions online at a later date.

Lesson:  Even employers who have participated in the H-1B lottery process in years past must be prepared for changes to the system.  USCIS has advised that existing myUSCIS accounts will automatically be upgraded to an Organizational Account at first login.  We recommend that you contact us in advance of logging into your myUSCIS account so that we may share the latest information and tips we are learning on an ongoing, daily basis, to prevent hiccups and/or delays in processing due to these new account feature.

Each electronic registration for FY25 requires a $10 non-refundable fee.  This fee will increase to $215 for each registration beginning next year.

 

Lottery Selection

USCIS is required to complete the lottery process by March 31 each year.  Historically, USCIS will complete the process and announce the results during the last few days of March, with April 1 being the first possible date an H-1B petition for a selected registration can be filed.  When running the lottery, USCIS will first select a random number of individuals qualifying under the advanced degree exemption to fill that quota of 20,000.  Once that is complete, it will combine the remaining individuals with the advance degrees into the ‘regular cap’ pool and run the random selection to choose the remaining 65,000 visas.

USCIS notifies applicants via their myUSCIS account of selection (or not) and by email.

 

Selected H-1B Cap Registrations

Once a registration is selected, employers or their attorneys should ensure that they obtain the selection notice (either by email or by logging into the online account).  That notice will specify the 90-day window within which the employer must file a complete H-1B cap petition.  USCIS may specify different filing windows in an attempt to stagger the filings and to allow for most efficient petition processing.

 

Not-Selected H-1B Cap Registrations

USCIS may run additional lotteries if an insufficient number of H-1B visas are issued based on the initial lottery.  There is no way to predict how many lotteries will be needed in advance, however, USCIS will not close out the registration system until it has confirmed issuance of sufficient visas to meet the cap (including the exemption).  The USCIS online account will show one of the following statuses for each registration, if not selected:

  • Submitted: The registration has been submitted and is eligible for selection.
  • Selected: Selected to file an H-1B cap petition.
  • Denied: Multiple registrations were submitted by or on behalf of the same registrant for the same beneficiary. If denied as a duplicate registration, all registrations submitted by or on behalf of the same registrant for this beneficiary for the fiscal year are invalid.
  • Invalidated-Failed Payment: A registration was submitted but the payment method was declined, not reconciled, disputed, or otherwise invalid.
  • Not Selected: Not selected – not eligible to file an H-1B cap petition based on this registration. (at the end of the fiscal year, unused “Submitted” registrations will be changed to “Not Selected.) Registration status will continue to show “Submitted” after the initial selection process has been completed and will only reflect a status of “Not Selected” at the conclusion of the fiscal year.

 

H-1B Cap Visa

Remember that irrespective of when an H-1B cap subject petition is filed, if/when the application is approved, the employment start date of the visa will not be earlier than October 1, 2024. In some circumstances, the filing of an H-1B cap subject petition can extend certain employees’ status and work authorization to enable them to bridge a common gap between when work authorizing documents issued to recent graduates expire in the spring or early summer until the effective date of the H-1B visa on October 1.

 

Support

If you have an employee who requires an H-1B petition in order to remain employed, please contact OGC Solutions immediately.  It is essential to prepare and file a petition before the window for filing closes, but this opportunity diminishes as time progresses.

If OGC Solutions is already assisting you with the filing of an H-1B petition subject to the cap, we will automatically notify you upon the filing of the petition and upon its acceptance for processing (i.e., selection in the lottery) or rejection.

OGC Solutions is available to assist you with your corporate immigration needs.  Attorney Alka Bahal, the Chair of OGC Solution’s Corporate Immigration Services practice, has more than 25 years of experience in corporate immigration, including H-1B visa processing.  Please contact us at ABahal@ogcsolutions.com or immigration@ogcsolutions.com to discuss your prospective matter.

 


[1] This change, among others, was implemented visa the publishing of the final rule called “Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers” which takes effect on March 4, 2024

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