FAQs on FY23 H1B Cap and the Electronic Registration System21 Feb 2022
H1B cap filing season is nearly upon us, and the U.S. Citizenship and Immigration Services (USCIS) again will use the electronic registration system, which was first implemented in March 2020. Below are answers to several frequently asked questions sent by both foreign nationals and prospective H1B employers.
1. What is the H1B cap?
The H1B cap is an annual limitation on the number of individuals who may be granted H1B status, not including those who are exempt from the cap (which includes those who previously have been counted against the H1B cap). The cap is set by Congress and currently is set at 65,000. However, only 58,500 generally are available, as some numbers are set aside specifically for nationals of Chile and Singapore. This does not include the 20,000 additional H1B numbers available to persons who have earned master’s degrees or higher from certain U.S. institutions of higher education, commonly referred to as the “master’s cap.”
2. How does the H1B electronic registration system work?
During a registration period designated by the USCIS, the employer must submit a separate electronic registration, along with a $10.00 fee, for each cap-subject H1B candidate the company seeks to sponsor for the next fiscal year. For cap-subject H1B petitions being filed for fiscal year 2023 (FY23), which runs from October 1, 2022, through September 30, 2023, the registration period will begin at noon Eastern Time (ET) on March 1, 2022, and end at noon ET on March 18, 2022.
At the end of the initial registration period, assuming the USCIS determines that it has received more registrations than needed to reach the regular cap and the master’s cap, the USCIS will conduct a random lottery from among all the registrations, and then a second lottery for the remaining registrations that are eligible for the master’s cap.
By March 31, 2022, the USCIS will notify the employer / petitioner for each selected registration that they may file an H1B petition on behalf of the employee / beneficiary listed in the registration. The notice will provide the petitioner with a 90-day filing window to submit the petition. For registrations selected during the initial registration period, the 90-day filing period is expected to start April 1, 2022.
The USCIS also has procedures in place to select additional registrations, or even reopen the registration period, if the H1B quota has not been exhausted after the initial selection.
3. What information must be included in the registration?
For each registration, the petitioning employer will need to provide certain basic information on both the employer and the sponsored foreign national, including whether the individual qualifies for the master’s cap. Details on the beneficiary that must be provided include:
Beneficiary’s full name
Date of birth
Country of birth
Country of citizenship
The employer also is required to attest that each registration relates to a bona fide job offer and that, if the registration is selected, the employer intends to file an H1B petition for the individual.
4. What are the requirements to qualify under the master’s cap?
To qualify, one must have completed a master’s degree (or higher) from a qualifying U.S. school. The school must be properly accredited by a nationally recognized accrediting agency or association. Pre-accreditation status is also acceptable. Additionally, the school must be a public or other nonprofit institution. If either of these two requirements is not met, the degree does not qualify the individual for the master’s cap exemption.
5. In May 2022 – two months after the electronic registration period ends – I will complete my final course to earn my master’s degree. Can my prospective employer submit my registration under the master’s cap?
Assuming the degree otherwise meets the requirements for the master’s cap, yes, this appears to be permissible under the registration rule. However, if the registration is selected, the employer and employee must wait to file the H1B cap-subject petition with the USCIS until completion of coursework or the attainment of the degree, as explained below.
In the preamble to the final rule that created the registration system, the USCIS noted that the “final rule does not alter the general requirement for establishing eligibility at the time the petition is filed.… Eligibility for H1B classification does not need to be demonstrated at the time a registration is submitted.”
Accordingly, if a beneficiary completes all of the degree requirements before the petition is filed, this should be permissible. Given that the 90-day filing window for the vast majority of registrations selected likely will start on April 1, 2022, H1B candidates expected to graduate before the end of June 2022 should be able to use those degrees to qualify.
6. I am graduating with a bachelor’s degree this coming May. Can I have an employer submit a registration for me in March based on that degree?
Yes, the same general concept applies here as with the previous question about the master’s degree. The beneficiary must complete all the degree requirements before the petition is filed and hence this should work.
7. Can I submit an H1B registration on my own? Do I need an employer to do it on my behalf?
A foreign national individual cannot submit an H1B registration (or petition) for oneself. Only a U.S. employer, or the employer’s legal representative, may submit an H1B registration or file an H1B petition on behalf of a foreign national. A person cannot self-sponsor for H1B.
In certain situations, it may be possible to be sponsored for an H1B position by a U.S. entity owned by the H1B worker. The USCIS tends to be very reluctant to approve these filings. (It also does not eliminate the need for a U.S. entity to submit the registration and file the H1B petition.)
8. Can more than one company submit H1B registrations for me?
It is possible for an individual to be registered for the lottery by more than one U.S. company. However, a single company normally cannot file multiple registrations for the same individual. Similarly, related or affiliated companies are not allowed to submit registrations for the same beneficiary, unless there are truly two separate job opportunities that can be clearly documented when the H1B petition is filed.
9. I found a U.S. company that is willing to sponsor me for an H1B position, but I have to hire an attorney to file the case and cover all the costs. Is that okay?
By law, certain fees associated with an H1B petition, including the ACWIA fee and the fraud prevention and detection fee, must be paid for by the employer. It is strongly recommended, however, for the employer to pay the attorney fees and all government filing fees, even those not specifically required by statute or regulations.
The U.S. Department of Labor (DOL) views nearly all fees paid in connection with the preparation and filing of an H1B petition to be an employer’s business expense. DOL regulations state that the imposition of an employer’s business expense on an employee represents a reduction in wage payments. If the employee’s wage falls below the required wage (the higher of the “prevailing wage” or the employer’s “actual wage”) due to this reduction, then the payment of these fees would constitute a wage violation. The employer may be liable for back wages, civil monetary penalties, and/or be disbarred from immigration programs, including filing H1B, H1B1, and/or E-3 petitions, in the event the employee’s wage falls below the required wage due to payment / reimbursement of the employer’s business expenses.
10. I am in F-1 status and have an optional practical training (OPT) work permit. Is it true that I can continue to work after my OPT expires based on cap-gap? Does registration provide any cap-gap benefits?
Under the cap-gap provisions, if an employer timely files a cap-subject H1B petition (i.e., not merely a registration) for a change of status for an October 1st start date (i.e., filed before the OPT period ends), then a foreign national in F-1 status may continue working between the expiration of the employment authorization (as indicated on the employment authorization card) and October 1st. If the petition with a change of status to H1B is approved by October 1st, the person then would begin to work in the H1B position on October 1st. If the H1B petition is denied, the cap-gap period for temporary work authorization generally terminates.
If the petition is still pending as of October 1st, assuming the OPT period has expired, one normally must stop working until the H1B petition is adjudicated. If approved, the foreign national would begin working in the H1B position upon the date of approval; if denied, the individual typically must depart the U.S.
The electronic registration program that the USCIS is operating does not provide any cap-gap benefits. Only if the registration is selected, and the cap-subject H1B petition is filed according to the normal, existing cap-gap rules, is a person in F-1 status able to benefit from cap-gap work authorization.
11. Do I have to be in the United States for a company to submit me for registration? If the registration is selected, do I have to be in the U.S. for the H1B petition to be filed?
No, the law does not require one to be in the United States for a company to submit that person’s information for registration. If a registration is selected for an individual who is outside the U.S., the employer typically will have to file the petition within the filing period assigned by the USCIS for consular notification. Once the petition is approved, then the individual normally will have to apply for an H1B visa “stamp” at a U.S. consular post abroad before requesting admission in H1B status.
12. Will the USCIS issue requests for evidence (RFEs) on registrations?
No, the USCIS is not expected to issue RFEs during the registration process and lottery. The USCIS has indicated that it will run the lottery with the information provided through the registration program.
13. Will premium processing be available for cap cases this year?
There is no word yet from the USCIS as to whether any restrictions will be placed on the use of premium processing for FY23 cap filings.
Copyright © 2022, MURTHY LAW FIRM. All Rights Reserved