Each year at this time we work closely with U.S. employers to identify any current foreign national employees and potential candidates for employment who may require H-1B visa sponsorship to work in the U.S. The popular H-1B work visa allows U.S. employers to employ foreign nationals in "specialty occupation" positions, which are positions that require the theoretical and practical application of a body of highly specialized knowledge and a bachelor's (or higher) or foreign degree equivalent in a specific field of study as a minimum requirement for entry into the position. The H-1B is the most coveted work visa for hiring professional level workers, including recent college and university graduates in fields such as but not limited to the following: computer science, software developing, technology, engineering, architecture, finance, supply chain, healthcare, sciences and teaching/research.
Importantly, U.S. employers interested in sponsoring foreign nationals for an H-1B visa only have this opportunity once per year for a limited period. Beginning on October 1st, the start of the federal fiscal year, 65,000 new H-1B visas become available with an additional 20,000 H-1B visas set aside for individuals who obtained an advanced (master's or higher) degree from a U.S. academic institution. Because there are more applicants than available visas each year, the USCIS conducts a lottery to determine which employers may sponsor specifically identified foreign nationals for H-1B work visa status.
The H-1B cap lottery requires employers to register intended H-1B beneficiaries into the USCIS' H-1B web portal within a limited window each year in early March. Following the close of the registration period, around late March, the USCIS conducts a random selection process (lottery). Employers whose registrations are selected in the lottery then have a 90-day period in which to file the selected H-1B petitions for adjudication on the merits. Regardless of when the H-1B petition is filed or approved, the earliest start date for new H-1B employment is October 1st of that calendar year.
The USCIS announced that this year the H-1B registration window will run from March 1, 2023 (12pm Eastern Time) through March 17, 2023 (12pm Eastern Time), and the agency intends to notify employers and representatives of registration selection by March 31st. Again, in order to be eligible to apply for and obtain an initial H-1B visa, it is necessary to register during this 17-day period. Once the window closes, it is no longer possible to seek an H-1B visa subject to the annual cap until the following fiscal year. For reference, last year, the USCIS received 483,927 H-1B registrations during March 2022 and selected 126,000 applicants from the lottery, which resulted in a 26% chance of selection.
Accordingly, we recommend that U.S. employers who wish to sponsor any foreign nationals for an H-1B visa work swiftly to engage counsel now to identify and assess eligibility of any foreign national, assess the viability of a potential H-1B petition for the proposed specialty occupation and prepare for the upcoming registration period.
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