LawQuest | US Immigration Alert | Geared Up for the Upcoming H-1B Cap Season FY 2024?

Geared Up for the Upcoming H-1B Cap Season FY 2024?

A crucial time of the year is approaching for all those companies looking to sponsor foreign nationals to work in the U.S. on an H-1B visa. For the past three years, the USCIS has been using an online electronic registration and selection system to conduct the H-1B “lottery” if there are more registrations than H-1B visa numbers.

Set out below is a brief description of the process flow and how companies should be prepared for the upcoming cap season.

Registration Process

The electronic registration period on myUSCIS is likely to begin in the first week of March 2023, and U.S. Petitioners/Attorney Representatives will have not more than 2 to 3 weeks to register their potential beneficiaries for the FY2024 H-1B Cap lottery.  Hence, it is important for employers to begin their applicant screening process by December 2022/January 2023 if they have not done so already to allow enough time to gather the required details.

U.S. Petitioners applying for the first time will be required to create an H-1B Registrant account on the myUSCIS website before the registration period begins.

We expect that the process for the upcoming cap season will remain unchanged unless the USCIS announces any modifications in the ensuing months. As in past years, and in view of the continuing shortage of talent in the U.S., we expect that the USCIS will have to run a lottery after the pre-registration process this year as in the last several years. However, the USCIS has the discretion to suspend the registration process at any time if it determines that the registration process is inoperable for any reason.

Deferred registrations may remain pending in the system for the rest of the applicable fiscal year (or until the CAP is reached) in the event that the USCIS needs to select additional registrations, sometime between July and November as they have done on occasion in the past.

H-1B lottery

After the registration period is completed the USCIS will conduct a lottery which is a randomized process. The USCIS will then electronically notify the U.S. Petitioner/Sponsor/Attorney Representatives of these selections by end of March 2023.

H-1B Petition and Visa

After the results of the lottery are out, U.S. Petitioners will have a period of 90 days starting from April 1st to submit H-1B petitions for the selected registrants along with the relevant forms, filing fee, LCA and other supporting documents. The USCIS will then adjudicate the petitions and inform the petitioners/beneficiaries of their decision.

Those petitions that get approved may then proceed to apply for their H-1B visas with a U.S. Consulate and commence working in the U.S. from October 1st onwards or any date thereafter.

Key Takeaways

  • Companies should begin collating a list of employees who they wish to shortlist for an H-1B visa in order to be employed in the U.S. by the end of the year of 2023.
  • Once the prospective candidates have been shortlisted, companies should accumulate necessary information and documents to ensure that the candidates meet the basic requirements which will make them eligible for an H-1B visa to make the registration process easier and faster.
  • Companies should validate certain important basic documents of shortlisted applicants, for e.g. in cases where the applicant’s passport is about to expire within a period of 6 months, the passport must be renewed before the registration period or shortly thereafter.
  • Companies applying for H-1Bs for the first time must complete certain registrations (FEIN and VIBE) before they are ready to file H-1B petitions. Since the DOL is usually swamped with a number of petitioners applying for an LCA, it is common for delays to take place which is why it is imperative to initiate the FEIN registration process with the DOL promptly.
  • LCAs currently take 7 days to be certified. As we get ready to file the H-1B petition, the number of LCAs filed with the DOL is only going to increase, leading to possible delays in LCA approvals.
  • Companies who miss registering its employees during the pre-registration period that will most likely begin in March 2023, there may be no further H-1B visas for FY 2024 and the earliest you could initiate a new H-1B case would be in March 2024 for an employment start date of October 1, 2024.
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