Statutes of Liberty: H-1B season is here

This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Doran Shemin, Esq., and Laura Lorenzo, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

USCIS’s inbox is going to look like this very, very soon

This year, the first week of March is the biggest week of the year for business immigration: H-1B season.

The H-1B visa is a visa for foreign workers who will work in a specialty occupation in the United States on a temporary basis. This means that foreigners who have specialty degrees — software programmers, accountants, lawyers — can work in the United States as long as they have a U.S.-based employer willing and able to hire them. The theory here is that workers in specialty occupations contribute greatly to the U.S. economy. (We agree with this theory, with the possible exception of lawyers who don’t advertise on ARLnow.)

Demand greatly exceeds supply for these visas. Each fiscal year, there is a cap of 65,000 visas and a separate cap of 20,000 visas, known as the master’s cap, for foreign nationals with a U.S. master’s degree or higher, for a total of 85,000 available visas. Most employers submit applications for foreign workers under this program in the hope that foreign workers will start work at the beginning of the next fiscal year, on October 1, 2023.

For the upcoming H-1B cap season, USCIS will continue to use the electronic registration process. Between March 1 and March 18, 2022, all employers seeking to file cap-subject petitions, including advanced degree petitions, must electronically register and pay a $10.00 fee to USCIS for each petition they wish to file. USCIS will then select registrations at random, and only those registrations chosen will be eligible to file a full cap-subject petition.

Demand is indeed intense. Usually, the number of registrations exceed the annual cap of 85,000 visas so USCIS makes random selections from those candidates who have registered. Once a registration is selected by USCIS, the employer has 90 days from the day to notification to file the petition.

If there are not enough registrations, or if employers fail to file the petition for the selected candidate, USCIS may continue accepting submitted registrations or open a new registration period.

Last year, after the initial lottery and the subsequent 90 day filing deadline for selected petitions, USCIS determined that the cap had not been met, thus triggering a second lottery where it selected an additional 27,717 registrations. A third lottery was announced in November, with the selection of an additional 16,753 registrations.

Electronic filing has proven to be a useful and cost-saving tool for employers as they do not have to file the whole H-1B petition and wait to see if their applications have been selected. The process, is however complex, and given the short timeframe to apply once a selection has been notified it is important to consult with an experienced immigration lawyer who can help companies navigate this new process. We are here to help.

As always, we welcome comments and will reply to all that we can.