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H-1B: Employers—only in March, get set, register!

published in EmployerLINC | February 13, 2023

The H-1B visa classification is a U.S. employer’s go-to when employing foreign nationals to work in specialty occupations in the United States.  Each year, employers dash to find highly skilled workers and race to file registrations on the prospective employee’s behalf in the hope of receiving the “opportunity” to “apply” to sponsor their chosen employee. The annual demand for highly skilled workers far exceeds the supply of available H-1B visas. Out of the 85,000 coveted visas available annually, 65,000 are open to prospective employees who hold the equivalent of a bachelor’s degree or higher. An additional 20,000 are reserved for prospective employees with advanced degrees from a U.S.-based institution.

The above numerical limits only apply to H-1B petitions subject to the cap. In the simplest terms, an H-1B petition is a “cap-subject petition” if the prospective employee has never held an H-1B visa or the employer is not an institution of higher education or affiliated with an institution of higher education, or a related nonprofit entity, a nonprofit research organization, or a government research organization. So, if either the employee or employer do not fall within one of the identified categories, the H-1B petition will be subject to the numerical cap and the impending registration deadline becomes a critical step to ensuring the employer and prospective employee receive the opportunity to compete for one of the coveted H-1B visas.

Only in March

Beginning on Tuesday, February 21, 2023, employers and their representatives may create “new registrant” accounts using the MyUSCIS online portal. Then, starting on Wednesday, March 1st, at noon (EST), employers/representatives may submit their online registrations on behalf of their prospective employees and pay the associated $10 registration fee. USCIS will assign a confirmation number to each registration submitted. The registration period closes on March 17, 2023.

The race isn’t given to the swift, but to those employers that properly register in March.

Employers sprinting to submit their registrations must exercise care. The selection isn’t given to those who swiftly file, but to those employers that properly register in March. Common employer errors that result in a technical disqualification of an otherwise timely filed registration are (1) creating the wrong type of account and (2) submitting multiple registrations for the same prospective employee. Employers must submit one registration for each of their prospective employees. That rule, however, does not prohibit the prospective employee from having multiple registrations submitted by different employers.

Once the registration period closes, the United States Citizenship and Immigration Services (USCIS) will remove the disqualified registrations, make its random selection from the properly submitted registrations, and around March 31st, invite the selected registrants to file an H-1B petition on behalf of the person named on the selected registration. Further, when filing the H-1B petition, the USCIS advises that “a cap-subject H-1B petition will not be considered to be properly filed unless it is based on a valid, selected registration for the same beneficiary and the appropriate fiscal year, unless the registration requirement is suspended.” To date, the registration requirement has not been suspended.

Finally, if the USCIS approves the H-1B petition, the employee may work for the employer for up to three years beginning on October 1, 2023.

One final point

The H-1B visa is a great way to recruit and retain talented foreign nationals to serve in specialized areas like accounting, architecture, engineering, education, healthcare, mathematics, science, technology, and so much more! Interested employers should contact their Labor & EmploymentImmigration Counsel to explore whether the H-1B or an alternative visa classification is right for their business.