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, can be filed starting the first week of the preceding April. However, DHS has sidestepped the onerous task of physically receipting and sorting more than 200,000 petitions filed in a single week, by publishing a Final Rule that introduced a new lottery procedure that allows employers to pre-register electronically to sponsor named workers for the H-1B cap, without preparing and filing a complete petition. The online registration for the H1B cap lottery uses myUSCIS.gov and this year’s e-filing period is March 1 through March 18, 2022;  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 FY2023 Cap, will designate the 90-day period in which those petitions may be filed, but filing periods will be staggered. First-round H1B cap lottery selected registrations may serve as the basis for petitions filed in the 90 days beginning on April 1.

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

B) Because petition filing dates are staggered according to when and if an H1B cap registration is selected, for the third year in a row, 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/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” authorization, which would allow them to keep working until October 1.

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

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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