The FY2023 H-1B Cap filing season ends on March 18, 2022, at 12 noon EST. If you are considering filing for the lottery system to obtain an H-1B visa, we highly recommend you start as soon as possible. If you have already filed, it’s time to start preparing for your options if your file is not selected as part of the lottery process. To assist you in the process, below are some common questions and their answers.

 

Q: When is the last day to register in the FY 2023 H-1B Cap?

The H-1B cap registration period is open from 12pm EST on March 1, 2022, until 12pm EST on March 18, 2022. While March 18 is the last day to register, we do not advise waiting until the last minute. The USCIS website will experience high traffic during the last few days of registration, which can result in technical issues or the website crashing. We recommend having all candidates registered ahead of time to avoid any of these frustrations.

Q: When will the results of the H-1B cap be announced?

A: USCIS will conduct the lottery by the end of the month. USCIS aims to upload selection notices in the USCIS accounts by March 31. The filing period for the first round of selections will be from April 1 – June 30, 2022. If there are subsequent selection rounds, those will be announced throughout the year. In 2021, there was a second-round in July and a third-round announced in November.

Q: Are H-1B candidates prioritized in order of date registered?

No, the H-1B cap is a random lottery. Whether you register on March 1 or on March 18 doesn’t affect your chances of being selected. We advise registering early to ensure there are no technical issues and to allow time for meaningful review before submission, but early registration does not impact your chance of selection.

Q: What information is required for registration?

For the employer, you must provide the legal name of the petitioning company, the “DBA” name, if applicable, the Employer Identification Number (EIN) for the company, the company’s office address, and the legal name, title, and contact information of the authorized signature. For the employee, you must provide the employee’s full legal name, gender, date of birth, country of birth, country of citizenship, and passport number. You must also notify USCIS if the employee has a master’s degree or higher from an accredited, nonprofit U.S. institution of higher education (for consideration under the U.S. Master’s Cap).

Q: Are LCAs required to register?

No, an LCA is not required to register. The LCA will only be filed if the registration is selected. At that time, the LCA is filed and the H-1B petition is submitted to USCIS.

Q: Are client letters required?

No, there is no requirement to have a client letter or any other supporting documentation during registration.

Q: Can I track my registration with USCIS?

No. While each registration will have a unique confirmation number, that confirmation number cannot be used to track the registration on the USCIS case status website or any other website. If selected, there is a 90-day window to file an H-1B petition, which then receives an I-797 receipt notice. The receipt number on that notice can be used to track the case at that time. Until that time, the registration confirmation number simply confirms the registration was submitted to USCIS. To check the status of the registration, the attorney or H-1B employer must log in to their USCIS accounts. Any updates are uploaded directly to the USCIS accounts.

Q: If a company completes the registration on their own, without an attorney, can the company use an attorney to later file the H-1B petition?

Absolutely. When the H-1B petition is filed, the attorney will include a G-28 as evidence of the attorney’s representation. You can file the H-1B petition using any attorney, regardless of if you completed the registration without an attorney or with a different attorney. As long as a duly executed G-28 is submitted with the H-1B petition, your attorney is authorized to represent the employer for that H-1B petition.

Q: Can H-1B candidates register through multiple companies?

The multiple petition rule is violated if an H-1B employer files two petitions on the behalf of the same employee. This rule is triggered when “related” companies file for the same employee. Importantly, “related” is not limited solely to legally related companies (parents, subsidiaries, etc.). Rather, USCIS considers companies “related” for purposes of the multiple petition rule if the companies file for the same beneficiary, for the same end client project. Even if the companies do not know of each other if the beneficiary and project are the same for both filings, USCIS and the AAO have found that is sufficient to show the companies acted in concert.

In past years, before the registration system was in place, this rule was heavily enforced. The registration system has made this harder for USCIS to monitor, but ongoing federal litigation means we expect USCIS to really target this issue for the FY 2023 cap cases. To that end, we do not advise submitting registrations through multiple companies. The safest way to avoid scrutiny is to file through a single employer.

If a candidate does register through more than one company, the opportunities must be completely unique and separate. This means legally unrelated companies, completely different projects, etc. If a candidate registers through multiple companies and eventually files H-1B petitions with more than one company if the project is the same for both filings, the multiple petition rule will be violated and both petitions will be denied.

For H-1B employers, if you are concerned that a prospective candidate may be registering through other employers, you can have that employee sign an attestation prior to registration that the candidate will not violate the multiple petitions rule. You can then retain the signed attestation for your records, in order to avoid liability in the event of a USCIS inquiry later.

Q: Is there a limit on how many registrations an H-1B employer can submit?

No, there is no limit. The USCIS website will only allow an employer to submit 250 candidates at a time, but you can submit multiple batches. However, keep in mind that employers should only register employees for whom they have an actual, bona fide job opportunity. By registering an employee, you are attesting that you intend to file an H-1B petition for that employee if the registration is selected. If a company receives selections and does not ultimately file an H-1B petition for those candidates, USCIS may investigate whether the employer has made false statements and misrepresentations to USCIS.

Q: If a company registers an employee, but later does not file an H-1B petition because the employee no longer wants to proceed or other changed circumstances, will it impact the company?

No, but the company should document the reason for not proceeding with the H-1B filing and retain the records in the event of any inquiry from USCIS.

Q: If a company is using an attorney, do they need to have their own USCIS account?

Yes. Companies registering through an attorney must still have an “H-1B Registrant” account. The Attorney will have a “Representative” account. The attorney will register the candidates in the representative account before generating a passcode that the company will then use to access the G-28 and registrations in their H-1B registrant account. The company will review and sign both the G28 and registrations. After that, the attorney will use the representative account to pay and submit the registrations to USCIS.

Q: When I enter the representative passcode provided by my attorney, I get an error message.

If the passcode isn’t working, the most likely reason is the email ID entered by your attorney for the G-28 does not match the email ID associated with your USCIS account. Make sure you have created an “H-1B Registrant” account and share the email ID associated with that account with your attorney. They will be able to make any required changes and send you a new passcode.

Q: Does the authorized signatory for the H-1B registration need to be the same as the authorized signatory who will eventually sign the I-129 petition, if the registration is selected?

No. The authorized signatory that signs the registration does not need to be the same as the authorized signatory that signs Form I-129 if the registration is selected. As long as both signatories are from the same H-1B petitioning company, this will not create any issue.

If you have not yet filed for the FY2023 H-1B Cap lottery and would like to, contact us. We can help. If you have filed and want to know more about how to prepare for your options, we can help. ILBSG has extensive experience and expertise in immigration law. We put it all to work for you to ensure you get the right advice.

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