From the desks of our Immigration Law Group.
Employers wishing to sponsor current or prospective employees in professional/specialty occupations in the H-1B cap lottery are encouraged to start early to register current employees or prospective employees for a cap subject H-1B visa.
U.S. Citizenship and Immigration Services (USCIS) will accept registrations for the FY 2023 lottery from Noon Eastern Time on March 1, 2022 until Noon Eastern Time on March 18, 2022. Registrations are online through your immigration attorney’s USCIS account. While very little information is needed to register–$10.00, a computer and some basic information– it is advised that you partner with an experienced immigration attorney to prepare information and documentation to ensure that the proffered job and the foreign national’s credentials meet the requirements for an H-1B.
As the FY 2023 H-1B cap season quickly approaches, employers and employees are starting to prepare for the H-1B petition process. Despite ongoing uncertainties that may affect the FY 2023 H-1B cap season, especially the COVID-19 pandemic, this upcoming H-1B cap will largely mirror the FY 2022 cap season in many respects.
Additionally, the 2023 fiscal year will see the return of the electronic registration process, which was launched in 2020 and has been well-received by applicants since its debut. According to USCIS, users indicated high satisfaction with the electronic registration process during FY 2022, with an average rating score of 4.87 out of 5.
H-1B Cap Season Rules Stay the Same
In FY 2023, it appears that many of the rules that were in place for the FY 2022 season will stay the same.
The proposed H-1B final rule that would have changed the H-1B selection process from a random lottery selection to a process that favors higher wages will not be implemented. The courts overturned the proposed final rule, and it was consequently set aside in September 2021. Additionally, the proposed final rule has been eliminated from the Federal Register.
As such, we anticipate the FY 2023 H-1B cap season proceeding as normal.
RFE Issuance
As before, USCIS is still issuing requests for evidence (RFEs). However, the volume of RFEs being issued has declined in the past few years. According to USCIS data, the number of petitions with RFEs started to decline after FY 2019, when 40.2% of H-1B petitions received RFEs. That number dropped to 28.8% in 2020, and it fell again to 16.2% in FY 2021.
The Importance of Starting Early
Another trend likely to continue in FY 2023 is the need to start the H-1B process early. Delays are still expected throughout the application process due to many factors, including the COVID-19 pandemic, budgetary constraints, potential government shutdowns and more. As the Department of Homeland Security (DHS) Office of Inspector General notes, USCIS is still experiencing significant backlogs in application processing for H-1B applications and other immigration services.
Please contact our Immigration Team, led by Jan Pederson, if you may want to file an H-1B registration this year. Note that the initial registration period reopened last year on two occasions in order to reach the 85,000 H-1 cap number. This was an anomaly from prior years. The good news is that the approval rate of H-1B petitions climbed to 96% last year, up from 76% in the past few years.