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Preparing for the FY2023 H-1B Cap Season

By Ana C. Santiesteban Gutiérrez ‡ & Courtney Brooks ‡ on February 13, 2022
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H1-B cap season

Recruiters and managers should be prepared to answer questions about the H-1B1 cap registration process for FY2023. This process initially requires only a $10 registration fee and minimal information. Companies should consider the following:

  • One registration per beneficiary per company: Duplicate registrations are prohibited. If a company submits more than one registration per beneficiary, all registrations filed by that company for that beneficiary will be considered invalid. One of the biggest changes for FY2023 is that U.S. Citizenship & Immigration Services (USCIS) is proposing to add a new feature in 2022 to allow stakeholders to check for “duplicate” registrations in advance of submitting their registration to help mitigate any accidental or erroneous registrations that might occur during the registration process. Visit the AILA website for a mock-up (proposed changes are in red).
  • Withdrawing Form G-28 from a registration: The system will now include a warning stating that withdrawing an associated Form G-28 from a registration does not delete a submitted H-1B registration from the system.
  • Companies should not wait for selection results to file a Labor Condition Application (LCA):To avoid potential case processing delays due to Department of Labor system overload, the LCA should be filed as soon as possible.
  • Heavy demand expected:In FY2022 USCIS received 308,613 H-1B registrations for 85,000 available visa numbers. Registrations not selected in the initial lottery will be held “in reserve” in the event that USCIS does not receive an H-1B petition for each selected registration.
    • Consider filing an H-1B cap case for potential hires and current employees in other nonimmigrant visa status (e.g., Trade NAFTA (TN), L-1B), especially for those whose final nonimmigrant time in the United States maxes out in the next three years.
    • Determine whether other visa options exist for employees who need sponsorship.
  • Supplemental lottery: In the past two years, USCIS determined that there were fewer filed H-1B petitions as compared to selected H-1B registrations. In 2020 USCIS conducted one supplemental lottery. In 2021 USCIS conducted two supplemental lotteries. Supplemental lotteries are not guaranteed; however, USCIS could conduct a supplemental lottery in FY2023 and select some of those registrations that are held in reserve.
  • H-1B cap-gap benefits attach upon filing of the H-1B cap petition: Cap gap does not attach upon filing the registration.
  • USCIS registration account: Work with counsel to create an account and establish who at the company controls and has access to the company’s account.

Read the full GT Alert.

Photo of Ana C. Santiesteban Gutiérrez ‡ Ana C. Santiesteban Gutiérrez ‡

Ana C. Santiesteban Gutiérrez handles global immigration matters, including PERM applications, adjustment of status, petitions for non-immigrant workers (H-1B, L-1A, L-1B, E-3, TN and O-1 visas), removal of conditions on residence, naturalization, appeals, motions to reopen and reconsider, I-9 audits, and requests for…

Ana C. Santiesteban Gutiérrez handles global immigration matters, including PERM applications, adjustment of status, petitions for non-immigrant workers (H-1B, L-1A, L-1B, E-3, TN and O-1 visas), removal of conditions on residence, naturalization, appeals, motions to reopen and reconsider, I-9 audits, and requests for evidence. She has experience with cases relating to cancellation of removal, asylum and withholding of removal, deferred action for early childhood arrivals (DACA), and also has counseled clients in matters involving discrimination claims, wrongful termination claims, and wage and hour disputes, specifically in cases involving Germany, Switzerland, Austria, Ireland, Spain, and Italy.

Read more about Ana C. Santiesteban Gutiérrez ‡EmailAna C.'s Linkedin Profile
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Photo of Courtney Brooks ‡ Courtney Brooks ‡

Courtney Brooks Co-Chairs the Immigration & Compliance Practice. She focuses her practice on U.S. business immigration, compliance and enforcement actions, as well as global immigration. She represents both large multinational companies and small start-ups on the full range of employment-based immigration, ranging from…

Courtney Brooks Co-Chairs the Immigration & Compliance Practice. She focuses her practice on U.S. business immigration, compliance and enforcement actions, as well as global immigration. She represents both large multinational companies and small start-ups on the full range of employment-based immigration, ranging from permanent residence (PERM, National Interest Waivers, Extraordinary Ability/Outstanding Researcher, Multi-National Managers, among others) to nonimmigrant visa categories (H-1B, H-3, J-1, L-1A/B, O-1, TN). Courtney has a particular understanding of working with the retail industry and the ever-evolving challenges this industry faces.

Courtney works closely with companies on complex challenges associated with I-9 employment verification, enforcement actions, as well as H-1B and LCA compliance. She provides proactive strategies in the form of onsite training, internal audits and reviews, as well as deploying best practices to minimize exposure and liabilities in the event of government investigations.

Courtney also assists multinational clients in the area of global mobility and immigration. She has experience helping companies move key personnel into all parts of the world.

Prior to practicing law Courtney worked with the Georgia Department of Economic Development as a Business Development and Project Manager. In this role, she helped Life Sciences and Technology companies move to and expand in the State of Georgia. She worked frequently with international and domestic companies addressing global mobility needs, and is acutely aware of the important role immigration plays for global companies.

Courtney has studied, lived, and worked in Canada, France, and Italy. She is fluent in Italian, proficient in French and has basic Spanish skills.

The attorney is providing legal services through and affiliated with Greenberg Traurig, LLP, a New York Limited Liability Partnership. Prior results do not guarantee a similar outcome.

Read more about Courtney Brooks ‡Email
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  • Posted in:
    Immigration
  • Blog:
    GT Israel Law Blog
  • Organization:
    Greenberg Traurig, LLP
  • Article: View Original Source

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