LAC Update: FY2023 H-1B CAP FILINGS

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LAC Update: FY2023 H-1B CAP FILINGS

The filing window for registration to seek an FY2023 (10/1/2022 to 9/30/2023) H-1B cap-subject or quota number will likely open in March 2022.

The earliest start date of employment for selected and approved petitions will be October 1, 2022.

What are the H-1B quota limitations?

  • Regular cap (Bachelor’s degree):                    58,200
  • Regular cap, Citizens of Chile:                           1,400
  • Regular cap, Citizens of Singapore:                   5,400
  • Master’s cap exemption (Master’s degree or higher from a U.S. university):  20,000

Which individuals may need cap-subject H-1B sponsorship?

  • F-1 students currently working pursuant to Optional Practical Training (OPT)
  • Individuals in TN status (pursuant to the U.S. Canada Mexico Agreement – formerly NAFTA — Treaty)
  • Individuals who are nearing the end of their L-1B status
  • Individuals who are nearing their first L-1B extension. Based on the increased scrutiny by USCIS of the L-1B classification (i.e. increased RFEs and denials), switching to H-1B status rather than filing for an L-1B extension may be a better option depending on the particular case
  • Individuals who are in their 4th or 5th year in L-1A status and are subject to quota backlogs preventing them from completing the permanent residency process
  • Candidates coming from abroad or not currently work authorized
  • Candidates seeking to transfer an H-1B from a cap-exempt to a cap-subject employer (such as a university to a for-profit company)
  • Individuals with H-4 EADs (given that H-4 EADs are also slated for elimination)

What types of cases are NOT subject to the H-1B cap?

  • H-1B amendments (filing to change a term or condition of employment for an employee who already holds H-1B status)
  • H-1B extensions (filing to extend the stay of an employee who already holds H-1B status)
  • H-1B transfers (filing to transfer an H-1B from Employer A to Employer B)
  • H-1B petitions for someone who has held an H-1B in the past and has not exhausted the full six years of H-1B time
  • H-1B petitions filed by cap-exempt employers, such as universities or non-profit research institutions

When should cap-subject H-1Bs be initiated with LAC/ Next steps?

H-1Bs should be initiated via LAC’s intake portal as soon as possible to ensure a smooth process and minimize the anxiety on employers and employees.

LAC will screen the position and candidate in advance to ensure eligibility to file an H-1B petition if the candidate is selected for filing. We will request certain documents and information from the employer and the candidate to confirm eligibility and collect the information necessary to complete the registration process.

Once the registration results are available, LAC will notify the employer and the candidate if they have been selected. H-1B petitions for those selected will be prepared for filing during the 90 day window, which is expected to open on April 1st.

When and how will winners be notified?

USCIS will send an electronic notice to the account holder who submitted the registration that an action has been added to the account.  USCIS will notify the account holder when the registration period closes.  USCIS has not yet advised when the registration period will open or close.

What happens to registrations that are not selected?

Registrations not selected in the ranking process will remain on reserve in the system for the applicable fiscal year. These unselected registrations will remain on reserve in the event USCIS needs to increase the number of registrations selected to meet the H-1B Regular cap or H-1B Advanced Degree cap slots available.

What are the next steps if a candidate is selected in the lottery?

USCIS will electronically notify an employer’s authorized representative of registrations that have been selected in the ranking process. An H-1B petition will then be prepared and filed with USCIS during the prescribed filing period. If USCIS requires more evidence before it can issue a decision, a request for evidence will be issued. Once an H-1B petition has been approved, employment can start no earlier than October 1st.

How much time will USCIS provide to file H-1B petitions once notices of selection have been issued?

USCIS will provide a period of 90 days for petitions based on selected H-1B registrations to be filed. The filing window is expected to open on April 1st.

Will candidates with a U.S. Master’s or higher degree continue to qualify for the Master’s degree exemption?

Yes. U.S. Advanced Degree professionals (applicants who hold a master’s or higher degree from a U.S. university) will first be considered for selection for 58,200 H-1Bs and if they are not selected, they will considered for selection for 20,000 H-1Bs under the Master’s Cap exemption.

Will Premium Processing be available?

USCIS has not confirmed if premium processing will be made available. The availability of premium processing service is usually determined later in the H-1B cap filing process.

What is the fee?

USCIS charges a registration fee of $10 per applicant.  LAC will charge a legal fee for attorney review of the position and candidate eligibility for H-1B classification, and preparation and submission of the registration.

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This update was prepared by Fausta M. Albi, Partner, Larrabee Albi Coker LLP.

Legal Disclaimer:  This e-blast is provided for informational purposes only and does not substitute for legal advice based on the circumstances of a specific matter. Immigration laws and policies change frequently, often without notice. It is therefore important to seek direct legal counsel based upon individual circumstances.

 

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