Key Takeaways:
• H-1B lottery to be conducted in March 2023 with the registration period running from March 1 through March 17 at Noon EST and selection notification by March 31, 2023
• New “Registrants” (US employers and agents) may begin creating accounts on February 21, 2023 at Noon EST
• Employers may file petitions for selected registrations from April 1 through June 30, 2023
• Approved petitions will allow for H-1B visa work authorization effective October 1, 2023
• Employers should review current and prospective employees and contact immigration counsel to discuss H-1B eligibility and lottery process by February 2023.
US Citizenship and Immigration Services (“USCIS”) will conduct its H-1B (“specialty occupation worker”) lottery for cap-subject candidate employees in March 2023. The H-1B visa category allows for temporary work authorization for individuals in occupations which require (at a minimum) a bachelor’s degree in a discipline related to the occupation. The H-1B visa category is statutorily limited to 85,000 new approvals annually (65,000 for the so-called “regular cap” and 20,000 for the “advanced degree cap”). Registrations have historically outnumbered the total number of available approvals. For this reason, USCIS conducts a lottery to determine which employees an employer will be eligible to petition for and seek H-1B visa status. The odds of selection will depend on the total number of registrations and the individual employee’s academic background. Regular cap registrations have historically had about a 25% chance of selection and advanced degree cap registrations (for those holding a US master’s degree or higher) had about a 33% chance of selection. In prior years, USCIS has conducted a subsequent lottery in August using re-captured, unused selections. Last year, USCIS conducted only one selection round in March. We anticipate the agency will again conduct only the March round this year.
Employers seeking to petition for qualifying employees for this employment authorized visa status will be required to register each employee in the lottery. Lottery registrations will be accepted between March 1, 2023, and Noon EST March 17, 2023. Only registrations completed (including payment of the $10 registration fee) before the close of the registration period will be considered. USCIS will then conduct the lottery and notify registrants and representatives by March 31. 2023. Employers may begin filing petitions for selected individuals during the filing window beginning April 1 for employment start dates of October 1, 2023, i.e., the start of Federal Fiscal Year 2024.
Because the registration and selection system truly is a lottery, employers and their employees who may need H-1B visas are advised to connect with counsel early on to begin case assessment and develop possible alternative strategies in the event the employee is not selected in the lottery. Early assessment and advising are particularly important for F-1 students employed under Optional Practical Training who may have only a very limited number of “plays” in the lottery before exhausting their employment authorization. The H-1B visa may also be used strategically for employees currently authorized under other statuses (e.g., TN, E-3, O-1) and we encourage employers to inquire to see whether seeking H-1B status is advisable or necessary.
Please contact someone at Dentons immediately to ensure that the employee will be included in this year’s lottery or to discuss any questions you may have regarding the above information.
