Labor & Employment Alert: H-1B Cap Season is Back

Jan 31, 2022

It is again time for those employers hoping to file cap-subject H-1B petitions to begin the planning process.

A lottery system will remain in place for FY2023. This means that employers seeking H-1B status for FY2023 (beginning on October 1, 2022) will submit limited details relating to each H-1B candidate, pay a $10 registration fee, and will only submit a full H-1B petition if the entry wins a lottery spot. U.S. Citizenship and Immigration Services (USCIS) has announced that the lottery registration system will be available from March 1, 2022, until March 18, 2022, (ending at noon Eastern) and that petitioners will be notified of the registrations that have been selected by March 31.

Timeline for the H-1B Lottery

  • February 21, 2022: Employer Account Registration will open. Every employer seeking H-1B visas must have a USCIS account for the H-1B lottery.
  • March 1, 2022-March 18, 2022 (noon Eastern time): H-1B Lottery Registration will be open. During this time, employers (or their attorneys) can submit lottery registrations for foreign national candidates.
  • March 31, 2022: Lottery results are expected to be announced on or before this date. Those who are allocated visas will obtain selection notices that they will file with their H-1B petitions.
  • April 1, 2022-June 30, 2022: Expected filing period for selected registrants.

Information Required for Lottery Submissions

Based on previous lottery seasons, we expect that, to submit a lottery entry, employers (or their attorneys) will be required to provide the following details:

Employer Information:

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

Beneficiary Information:

  • Beneficiary’s legal name
  • Beneficiary’s gender
  • Whether the beneficiary has a master’s or higher degree from a U.S. institution of higher education
  • Beneficiary’s date of birth
  • Beneficiary’s country of birth
  • Beneficiary’s country of citizenship
  • Beneficiary’s passport number

Method of Submission

USCIS will leverage the https://my.uscis.gov/ online portal for the H-1B registration process. Employers may submit registrations independently or through an attorney, provided that a Form G-28 is submitted to confirm the attorney’s representation of the employer.

Bose McKinney & Evans LLP is prepared to submit H-1B registrations on behalf of its clients and urges employers to at least speak with an immigration attorney prior to submitting a registration.

Preparing for the Lottery

In many cases, employers may wish to wait to perform significant work on H-1B petitions until after it becomes aware of the lottery results. However, it would be wise for employers to, at minimum, confirm the following:

  1. That the offered position is a specialty occupation that requires a candidate to hold, at minimum, a bachelor’s degree in a specific field;
  2. That the employer understands the prevailing wage for the position and is prepared to meet or exceed the wage; and
  3. Whether the Beneficiary is a student who seeks to benefit from “cap gap” employment authorization. Cap gap benefits only attach upon filing of the H-1B petition, not by submitting a lottery registration. As such, employers seeking cap gap benefits may wish to prepare the full H-1B petition sooner so that the petition may be submitted prior to the Beneficiary’s employment authorization expiration date.

Employers may also wish to prepare Labor Condition Attestations and related posting notices in advance to speed the petition process for those candidates who win the H-1B cap lottery.

What to do Now

We recommend that employers prepare a spreadsheet or list of individuals for whom they wish to submit H-1B lottery registrations.  The list or spreadsheet should include the details noted above relating to the employer and Beneficiary and should also include:

  • Job Title
  • Minimum Job Requirements
    • Degree
    • Degree field
    • Years of experience
  • Offered Salary
  • Job Description
  • Beneficiary’s current immigration status
  • Expiration date of current immigration status
  • Expiration date of current employment authorization
  • Basis for current employment authorization (H-4, L-2, OPT, CPT, etc.)

Once these details are ready, please submit your spreadsheet or list to nkersey@boselaw.com for review and preparation for the lottery.