U.S. Citizenship and Immigration Services (USCIS) introduced a new H-1B cap registration process for fiscal year (FY) 2021. This process was continued for the FY 2022 H-1B cap lottery, and it will be substantially the same for the FY 2023 H-1B cap lottery. For FY 2021, USCIS received 274,237 registrations and initially selected 106,100. USCIS then conducted a second selection in August of 2020 in which an additional 18,315 registrations were made due to a low volume of filing from the first selection. For FY 2022, USCIS received 308,613 registrations and selected 87,500. USCIS conducted two subsequent selections (27,717 on July 29, 2021) (16,753 on November 19, 2021). The filing period for the last selection in FY2022 closed on February 23, 2022, so the applicants have had to monitor an ongoing relocation of the goal post for H-1B filings and maintenance of status challenges.
The expectation in FY 2023 is for an even higher number of H-1B registrations based on the demand for skilled workers and the lower unemployment rate in the U.S. The FY 2023 electronic registration will open on March 1, 2022 at noon (ET), and there are a number of important issues to consider, including but not limited to the following:
- H-1B Registrant Accounts
- On February 21, 2022 at noon (ET), petitioners were able to create new H-1B registrant accounts through the USCIS online portal. Representatives may use existing accounts. USCIS provides an overview of the H-1B registration process via a detailed PowerPoint.
- When creating an H-1B registrant account, the petitioner must select the option, “I am an H-1B registrant.”
- Registrants will not provide company information when setting up their myUSCIS The company information may be provided starting on March 1, 2022 when the H-1B registration portal opens.
- H-1B Representative Accounts
- Attorneys/Representatives are able to create a myUSCIS account prior to February 21, 2022, because representatives may use the same kind of account already available to them for other purposes.
- Attorneys may submit registrations on behalf of a client as long as the client has a myUSCIS “registrant” account and a Form G-28 is submitted for the client. Submitting the G-28 for electronic registration involves a two-factor authorization process. After the attorney prepares the registration and G-28 electronically, a one-time passcode is generated. The attorney must share the electronic passcode with the client, who must log into their myUSCIS account and select “Enter Representative Passcode” to review and accept the G-28.
- After accepting the G-28, the client will be instructed to review the registration information and either accept or decline the registration. Once the registration is accepted, the registrant’s authorized signatory will provide their electronic signature by typing their full legal name into a designated box. After the registrant electronically confirms the registration information and G-28 information, the attorney may pay the registration fee and submit the registration.
- At the time of accepting the electronic registration, the authorized signatory will be required to certify, under penalty of perjury: 1) that they have reviewed the registration and that all of the information contained in the registration is complete, true, and correct; and 2) that the authorized signatory, or the organization on whose behalf the registration is being submitted, intends to file an H-1B on behalf of the beneficiary named in the registration if the beneficiary is selected.
- One attorney or accredited representative is able to manage one or more clients under a single account. Only one user should be designated per attorney account.
- Registration Preparation and Filing
- The initial registration period will be open from March 1, 2022 at noon (ET) until March 18, 2022 at noon (ET).
- If USCIS determines it has received more than enough registrations to meet the numerical cap limitations, all registrations submitted during the initial registration period will be included in the lottery (regardless of whether registration was submitted on March 1, 2022 or March 18, 2022).
- Both representatives and registrants must wait until March 1, 2022 to submit H-1B registrations. USCIS will permit users to review and edit draft registrations of beneficiaries before the registration is submitted.
- USCIS will not permit a user to edit a registration once it has been submitted. However, USCIS will permit a user to delete a registration of an individual beneficiary (by clicking the “delete” button next to the beneficiary’s name) without impacting the registrations of other beneficiaries.
- There is no limit on the total number of beneficiaries that a petitioner may register. However, a single registration can only include up to 250 beneficiaries. Additional beneficiaries can be added to subsequent registrations for the same petitioner.
- Upon submission of the registration and payment of the registration fee, a petitioner is able to see a list of all beneficiaries they have registered. Each beneficiary is assigned a 19-digit confirmation number.
- A prospective petitioner can only have one registration submitted per beneficiary per fiscal year. For FY 2023, USCIS is adding a duplicate checker function to the electronic registration process, which allows a check before submission of the registration to try to spot duplicate submissions. This check compares the beneficiaries listed in the draft with any registrations previously submitted during the registration period. It will not check, however, for duplicates within that draft or between drafts. USCIS does invalidate all registrations submitted by a petitioner for a beneficiary if the petitioner submitted duplicate registrations for the beneficiary. If a duplicate registration is found while the initial registration period is still open (before noon ET on March 18, 2022), then it is possible to delete the extra registration. There is no way to correct the error after the initial registration period is closed.
- Registration Selection Process
- USCIS will conduct the initial selection process after the initial registration period ends. USCIS intends to notify registrants and representatives with selected registrations no later than March 31, 2022, and the earliest date that FY 2023 H-1B cap-subject petitions may be filed is April 1, 2022. Registrants and representatives may select their preferred method of notification when setting up their myUSCIS.
- Any registrant or representative who submitted a selected registration will receive a notification from USCIS via email or text message (depending on the method of communication selected at the time of creating the myUSCIS account) stating: 1) that there is activity in their myUSCIS account; and 2) that they will need to log into their myUSCIS account to see details.
- A registrant or representative’s myUSCIS account will show one of the following statuses for each registered beneficiary:
- Invalidated-Failed Payment: A registration was submitted, but the payment method was declined, not reconciled, or otherwise invalid.
- Submitted: A registration status may continue to show “Submitted” after the initial selection process has been completed. “Submitted” registrations will remain in consideration for selection until the end of the fiscal year (if USCIS determines that it needs to increase the number of registrations projected to meet the H-1B regular cap or the advanced degree exemption allocation, USCIS will select from registrations held in reserve to meet the H-1B regular cap or advanced degree exemption allocation). At the end of the fiscal year, all registration statuses will indicate either “Selected,” “Not Selected,” or “Denied.”
- Selected: The registration has been selected to file FY 2023 H-1B cap-subject petition.
- Not Selected: The registration has not been selected to file FY 2023 cap-subject petition.
- Denied: USCIS will indicate “Denied” in situations where the same registrant or representative submitted more than one registration on the beneficiary’s behalf for the same fiscal year. All registrations the registrant or representative submitted on behalf of the same beneficiary for the same fiscal year will be deemed invalid.
- Registration Account Issues
- Last year, some users reported issues accessing their myUSCIS accounts, including: 1) seeing a blank screen when logging into their myUSCIS account; and/or 2) not being able to access any features of their account.
- Some of these reports were from users with Safari or Google Chrome as their browser, and some users have reported being able to resolve the issues by using a different browser such as Firefox or by clearing/deleting cookies before logging into their myUSCIS.
- Individuals encountering technical issues during the H-1B registration process may call the USCIS Contact Center (1-800-375-5283), which is available from Monday – Friday from 8 am – 8 pm ET. There will not be a separate phone line dedicated to the H-1B registration process. There is also an online option for addressing problems with the account password or unlocking the account.
- Recent Changes
- On February 25, 2022, USCIS announced that all H-1B and H-1B1 petitions received on or after April 1, 2022, with accompanying filings such as the Form I-539, I-765, or I-824, must be accompanied by a separate filing fee payment for each Form.
- USCIS did submit proposed revisions to the H-1B registration tool to the Office of Management and Budget (OMB), and comments were required by February 22, 2022. (See 87 Reg. 3321).
About the Author:
Ian Nesteruk is a Member in the firm’s Phoenix office. He practices in the area of immigration law, representing corporate and individual clients in connection with non-immigrant employment-based visas, immigrant employment-based visas, and family-based immigration. He has experience in a range of non-immigrant employment-based classifications including H, TN, E, O and P visas. His immigrant employment-based experience is primarily in the technology industry and includes recruitment-based cases, outstanding researcher and extraordinary ability petitions, and national interest waivers. You may reach Ian at 602-889-5358 or INesteruk@dickinsonwright.com and you may visit his bio here.