H-1B ​Cap ​Timing ​Issues

H-1B ​Petitions

When can petitions be filed for the next fiscal year?

In 2020, everything we know about filing procedures for cap-subject H-1B petitions changed.  In general, all petitions for a non-immigrant worker can be filed up to six months in advance of the start date requested, so H-1B petitions for a new fiscal year, which begins on October 1, used to be filed starting in the first week of April. However, DHS sidestepped the onerous task of physically receipting and sorting more than 200,000 petitions filed in a single week, by publishing a Final Rule which introduced a lottery procedure allowing employers to pre-register electronically to sponsor named workers for the H-1B cap, without having to prepare, file, and paying for a complete H-1B petition. The online registration for the cap lottery uses myUSCIS.gov, and this year’s e-filing period is March 1 through March 17, 2023;  lottery results will be sent out electronically on March 31. Notifications sent to winners selected in the lottery, whose petitions will be accepted for processing under the FY2024 Cap, will designate the 90-day period in which those petitions may be filed, but filing periods will be staggered if the entire quota is not used up in the first round of petition filings. First-round cap lottery selections may serve as the basis for H-1B petitions filed in the 90 days beginning on April 1.

A) Now that the H-1B electronic lottery has been in use for several years, and attorneys as well as corporate users now have some familiarity with the myUSCIS.gov module for lottery registration, that part is smoother, but new users frequently have trouble with setting up their “registrant” accounts, and errors can cost precious time. It is essential to note that you cannot use the same email address for more than one USCIS account, even if the accounts are of different types.

B) Because petition filing dates are staggered according to when and if an H1B cap registration is selected, once again we go into H-1B Cap season not knowing in advance when a petition for a specific worker can be filed, or if their case will be selected. This means we cannot tell any worker presently under F-1 Optional Practical Training whose Employment Authorization Document (EAD) expires in April, May, or June whether or not an H-1B petition can be filed on their behalf before that EAD  expires, and thus we cannot advise them whether or not they will have F-1 “Cap-Gap” work authorization, which would allow them to keep working without interruption until October 1.

C) While the electronic lottery pre-registration process and staggered filing periods take some pressure off USCIS Service Centers, especially their mailroom contractors, the Agency has not said yet whether they will allow Premium Processing for H-1B cap petitions this year.

Do you have more questions about timing issues for cap-subject H-1B visas? Contact Karin Wolman for a consultation today!

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