Fiscal Year H-1B (2023)
These materials are provided solely for informational purposes and are not legal advice. Transmission of these materials is not intended to create, and receipt does not constitute, an attorney-client relationship. Readers should not act upon the information contained in this FAQ without first seeking advice from a qualified attorney.
On January 28, 2022, USCIS announced its timeline for FY2023 Registration; nonetheless, a third round of selections for FY2022 is still underway until February 23, 2022. We will continue to update these FAQs as new information becomes available.
Q: What is a Fiscal Year H-1B?
A: The USCIS fiscal year runs from October 1 through September 30. When employers sponsor an employee or future employee for H-1B employment, and this employee has not previously held H-1B status either with the current employer or a past employer, the employee requires a fiscal year H-1B approval.
Q: How many Fiscal Year H-1Bs are available?
A: Under current laws, the USCIS may approve up to 65,000 new H-1Bs each fiscal year, plus an additional 20,000 for U.S. Master’s or higher degree graduates. These limits are known as the H-1B Cap (“Cap”).
Q: Are there any exemptions to the Fiscal Year Cap?
A: Yes, employers who are nonprofit research organizations, governmental research organizations, institutions of higher learning or affiliated organizations may sponsor H-1B employees, and these H-1Bs are not subject to the Cap.
In addition, as a result of the United States’ Free Trade Agreements with Chile and Singapore, several H-1B visas are allocated each fiscal year for citizens of Chile and Singapore. These 6,800 visas are exempt from the Cap.
Q: When may an employer file the petition for a Fiscal Year H-1B visa?
A: The USCIS accepts H-1B petitions no more than 6 months in advance of the fiscal year, which means April 1 at the earliest. Under the previous regulation, the USCIS was required to accept properly prepared Fiscal Year H-1B petitions during the first 5 business days of April, after which a random computer-generated lottery was held if the number of petitions exceeded the allotment of H-1B visas. However, starting in 2020 (for Fiscal Year (FY) 2021), USCIS implemented a new process known as “Registration.” See below.
First, the lottery is held for the 65,000 H-1Bs under the regular cap. Once sufficient numbers have been selected under the H-1B regular cap, USCIS will then select 20,000 U.S. Master’s or higher degree beneficiaries.
Q: What is Registration?
A: Starting in 2020 for cases to be filed for FY 2021 approval, the USCIS implemented an electronic pre-registration process ("Registration"). USCIS is expected to follow this process again this year, for Fiscal Year (FY) 2023. Fortunately, overall, the Registration processes have run smoothly and we are expecting continued predictability in the process this year. All petitioners (employers) must use a myUSCIS account (and may create new accounts starting February 21, 2022), and will be required to pay a $10 fee and register each employee they wish to sponsor for H-1B status during the initial registration period, from March 1 through March 18, 2022. Once the registration period closes, the USCIS will hold a lottery and begin notifying selected registrants by March 31. Selected registrants will then have at least 90 days to file the H-1B petitions, including approved Labor Condition Applications.
Approval of FY H-1B petitions is still dependent on USCIS adjudication (for qualifying specialty occupation, employer-employee relationship, etc.). Registration will require specific biographical and immigration data about each employee.
Q: How will the employer be notified if they “win” or “lose” the lottery?
A: After each random lottery is completed, the USCIS will issue “Selection Notices” electronically for selected registrants with instructions on how to submit an H-1B petition (including the service center to which it should be sent, as well as the filing deadline for it). Depending on how many petitions it receives during the first 90-day window, USCIS may conduct multiple selection rounds and may issue additional Selection Notices based on the initial Registration data. Registrants and representatives may not be notified until the end of the fiscal year process if they are not selected; for FY 2021, official “Not Selected” notices were not issued until February 2021.
Q: I heard that USCIS published a final rule to implement a wage-based selection process for the H-1B lottery. What does this mean?
A: On January 8, 2021, the USCIS published a final rule to change the H-1B cap selection process to a wage-based system, instead of the current random selection process. It would prioritize petitions based on registrations with the highest salary levels.
However, following the rule being vacated by a Federal district court, in December 2021, the DHS formally withdrew the rule.
Therefore, this rule will not impact any upcoming H-1B registrations/lotteries.
Q: What are the chances of being selected for a Fiscal Year H-1B visa in the lottery?
A: The chance of being selected in the lottery depends on the overall number of registrations. Overall, USCIS may select more than 85,000 registrations in an effort to reach the fiscal year numerical allocations.
For FY 2021, USCIS reports that it ultimately selected 124,415 registrations out of a total of 274,237 registrations submitted. For FY 2022, USCIS reports that it has selected 131,970 registrations out of a total of 308,613 registrations. The odds are slightly more favorable for the 20,000 U.S. Master’s or higher degree holders. Data is still forthcoming on how many petitions were ultimately filed and approved.
Q: If the employer receives a receipt notice, does that mean for sure that it will receive approval of the
A: No, the USCIS must still evaluate the H-1B petition for approvability based on laws and eligibility requirements. For example, the USCIS will evaluate whether the job being offered is in a “specialty occupation” which requires a minimum of a Bachelor’s degree in a specialized field of study, or perhaps whether the Bachelor’s degree held by the candidate is related to the offered job.
If the USCIS has any questions, they will issue a Request for Evidence (“RFE”) and provide the employer with a deadline by which to answer the questions and/or provide more information.
Q: How long will it take for the USCIS to approve the H-1B petition if an RFE is not issued or if an RFE is issued?
A: In recent years, WSM received approval notices filed under normal processing on average within 4 months. However, if an RFE is issued, that typically will delay overall case processing by about 3 to 7 months depending upon how quickly the response can be prepared and submitted, especially during USCIS's extended COVID flexibility in responding to RFEs.
Q: Do I have work authorization while the Fiscal Year H-1B petition is pending at the government?
A: For those holding F-1 Optional Practical Training (OPT) status expiring before April 1, and where OPT status cannot be extended to April 1 or beyond, a timely filed H-1B petition will not extend OPT work authorization. If all eligible OPT has been exhausted prior to April 1, the employer still may file the H-1B petition, but the employee most likely will need to depart the U.S. when the authorized OPT period expires to wait for the USCIS to approve the Out of Country H-1B and then return to the U.S. just prior to October 1.
If OPT status expires after April 1 but before October 1, and if the employee is selected in the lottery following Registration, the employee is eligible for Cap Gap protection upon filing the H-1B petition.
Q: What is Cap Gap protection?
A: For those employees with F-1 OPT status expiring April 1 or later but before October 1, the USCIS allows continued work authorization until October 1 so long as the employee has been selected in the lottery following Registration and has timely filed an H-1B petition. "Timely filed" means that, in order for cap gap to be available, the fiscal H petition must be received by USCIS no later than the date when the OPT EAD or STEM OPT EAD expires. This is known as “Cap Gap” protection.
If for some reason the H-1B petition is denied, the individual no longer has Cap Gap protection and should cease working once the OPT expires to avoid periods of unauthorized employment. Likewise, if an H-1B is not selected in the lottery (“rejected”), the employee will hold work authorization only through the duration of their F-1 OPT. The pre-registration system has complicated the use of cap gap. For example, an F-1 student whose STEM EAD will expire in June would need to be selected in the first round of the lottery in order to be able to benefit from cap gap.
If an individual’s OPT expires after October 1, they have continued work authorization until that expiration date regardless of the Cap Gap provisions.
Q: Is there a Cap Gap for individuals who are not in F-1 status?
A: No. Cap Gap protection is available only to those holding F-1 OPT that expires April 1 or later and before October 1. For example, someone holding J-1 status valid through June 1 would not be eligible for employment after June 1 even if the H-1B were timely filed. That J-1 holder would be required to cease work on the date of J-1 expiration, depart the U.S. after the expiration of any grace period, and assuming the H-1B were selected in the lottery and approved, return to the U.S. in H-1B status after obtaining an H-1B visa stamp at a U.S. Consulate abroad.
Q: What must I do to take advantage of the Cap Gap?
A: The individual should contact their Designated School Official (“DSO”) with evidence of the H-1B change of status request (typically, a receipt notice, FedEx receipt or approval notice) to obtain an endorsed Form I-20 indicating Cap Gap authorization.
Q: Can I travel outside the U.S. once the Fiscal Year H-1B petition has been sent to the USCIS?
A: Always speak with your employer and attorney before making international travel plans. Especially in light of COVID pandemic-related travel restrictions and Consulate and USCIS closures, travel in and out of the U.S. has been perilous and unpredictable. As of the date of this post, all U.S. Consulates and Embassies are restricting visa appointments due to COVID-related reasons, so the ability to obtain any kind of visa stamp is challenging and may be impossible. Please continue to check our website regularly as we will provide updates on the latest developments as they arise.
As a general rule, traveling internationally once the petition has been filed and before October 1 carries risk for all employees.
Eligibility for international travel will depend on several factors, including: (1) case filing posture, whether “Out of Country” or “Change of Status”; (2) the timing of travel; (3) visa stamp validity; (4) whether Cap Gap protection applies; and other issues.
SCENARIO No. 1 — Employee Benefitting from Cap Gap Protection:
An F-1 student who has an approved H-1B petition and whose OPT work authorization expires on April 1 or later but before October 1 can benefit from Cap Gap. During the Cap Gap period, an F-1 student can travel and re-enter the United States prior to October 1 only if:
- The H-1B change of status petition filed on behalf of the student has been APPROVED before the student travels;
- The student has a valid F-1 visa stamp at the time of reentry;
- The student has a Form I-20 that reflects the Cap Gap benefit and that has been properly endorsed for reentry with the DSO’s travel signature within the last six months; AND
- The student is otherwise admissible.
- Travel is NOT allowed while the H-1B change of status petition is pending. Under longstanding INS/DHS policy, an applicant who departs the United States while a change of status application is pending is deemed to have abandoned the change of status application; in such a case, the student’s Cap Gap benefit would also end.
- As with any other instance in which an individual seeks admission to the United States, admissibility is determined at the time the individual applies for admission at a port of entry and the student still runs a remote risk of not being admitted by the port of entry officer.
SCENARIO No. 2 — Employee with F-1 OPT Status and Visa Stamp Valid Beyond October 1: If your OPT work authorization document and visa stamp are valid beyond October 1, you may be eligible to travel internationally after April 1 and before October 1. WSM likely would file the case as an Out of Country petition, which means that in addition to the contemplated summer travel, you would need to depart the U.S., obtain an H-1B visa stamp, and re-enter the U.S. in order to activate H-1B status. Please note that even in this circumstance, there is a remote chance that a port of entry officer at the airport could refuse entry after international travel once the H-1B has been filed. Please consult with WSM regarding summer travel if you meet all requirements noted above.
SCENARIO No. 3 — Employee with F-1 OPT Status Beyond October 1 Without Valid Visa Stamp: If your OPT work authorization document is valid beyond October 1 but your visa stamp will expire before the date of your planned re-entry to the U.S. after summer travel, WSM advises against international travel after April 1. You would be required to apply for a new F-1 visa stamp at the Consulate abroad before re-entering. Once the H-1B has been filed, the U.S. Consulate could refuse to entertain the visa stamp application. If the employer and employee want to assume this risk, WSM recommends filing the H-1B petition as an Out of Country case.
Q: What is an Out of Country H-1B petition versus a Change of Status H-1B petition?
A: Depending on your travel needs and/or when your current work authorization expires, your employer may choose to file an Out of Country H-1B petition. This means that once approved, you will need to apply for an H-1B visa stamp (unless you are Canadian) at a U.S. Consulate or Embassy abroad before you return to the U.S. to begin H-1B employment.
If your employer files a Change of Status H-1B petition, this means that as long as your current work authorization continues through October 1, you will not need to depart the U.S. to apply for an H-1B visa stamp before beginning H-1B employment.
Q: If I need to apply for an H-1B visa stamp, when is the earliest I can do this?
A: Under normal circumstances, most U.S. Consulates and Embassies will allow you to apply for an H-1B visa stamp as early as 30 days in advance of the start date indicated on the Form I-797 approval notice. You are permitted to enter the U.S. up to 10 days prior to your H-1B employment. You may not begin working until the start date indicated on the approval notice.
For beneficiaries applying from outside the U.S., you may not begin working in the U.S. until you are able to obtain an H-1B visa stamp. Note: As of the date of this post, all U.S. Consulates and Embassies are restricting visa appointments due to COVID-related reasons, so the ability to obtain any kind of visa stamp is challenging and may be delayed.
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