United States: USCIS Completes FY 2023 H-1B Cap Selection Process

USCIS will begin to accept H-1B cap petitions on behalf of lottery selectees on April 1, 2022. The petition filing period will end no earlier than 90 days thereafter. All FY 2023 H-1B cap petitions must be submitted during this period for registrations selected between March 19 and 29. Selection notices received thus far reflect an April 1 to June 30, 2022 filing period.

Though in most cases a cap petition can be filed at any point during the filing period, some cases may need to be filed at specific times. If the beneficiary is an F-1 student working on optional practical training (OPT) who will need cap-gap protection, the petition must be filed before his or her OPT employment authorization document expires. If the beneficiary is awaiting completion or award of a required degree, the petition must not be filed until the degree has been issued or the beneficiary has obtained documentation from the appropriate school official that degree requirements have been satisfied.

Your H-1B sponsoring employer and its Fragomen counsel will access the USCIS registration system to determine the outcome of the FY 2023 cap lotteries. Employers will review selections and follow their agreed communication protocols for notification of selection. Please rest assured that you will be notified in due course. For those selected in the lottery, your employer’s Fragomen team will proceed with next steps for filing an H-1B petition with USCIS. If your registration was not selected, you can expect a communication and any related immigration strategy to follow from your employer’s Fragomen team.

If a registration was not selected in this lottery, it will be held in the system and remain in consideration for selection in the event that USCIS does not receive by June 30 a sufficient number of H-1B cap petitions to meet the 85,000 H-1B annual quota. Whether the agency will conduct more than one lottery selection will depend on how many registrations are selected by USCIS in the initial round, as well as how many H-1B petitions are submitted to USCIS by employers with selected registrations.

In each of the last two H-1B cap seasons – the only seasons in which the H-1B registration system has been in place – USCIS has conducted more than one H-1B registration selection lottery. In FY 2021, the agency ran an additional lottery in the summer of 2020, and accepted H-1B cap filings for newly selected registrations from mid-August to mid-November 2020.  In FY 2022, the agency held two subsequent lotteries; the second selection was conducted in July 2021, with H-1B cap filings accepted from early August to early November 2021, while the third lottery ran in mid-November 2021, with filings accepted from late November 2021 to late February 2022.

Your company’s authorized signatory and your Fragomen attorneys will need to log into the registration system to determine which beneficiaries have been selected and obtain the USCIS selection notice for each such beneficiary. Your organization’s H-1B registration leads should also look out for emails from the USCIS registration system notifying them of action taken on the organization’s registrations. Your Fragomen attorneys will also receive these notifications.

To facilitate the submission of H-1B cap petitions, work closely with your Fragomen team so that essential supporting evidence, including the USCIS selection notice, company documentation, beneficiary educational documents, and other required documentation, can be collected promptly if it has not yet been gathered.

Fragomen is closely monitoring H-1B cap developments and will issue updates throughout the cap season.