H-1B Visa 2023-2024 Cap Season: The Definitive Guide [Updated 1/31/23]

The H-1B Visa 2023-24 cap filing season is right around the corner. It’s time to look at the H1-B visa lottery season, including H1-B registration, requirements, and potential changes. With many new changes to the H-1B 2024 lottery, there are only a few short months left before filing. Use this guide as your one-stop shop for all your H-1B visa 2024 information, news, and updates. It’s essential to stay informed about the latest updates and changes to the H-1B visa process, as the rules and regulations can vary from year to year. Stay ahead of the game and increase your chances of success with our H-1B visa 2023-24 cap guide.

VisaNation Law Group’s team of highly-experienced attorneys specialize in H-1B and employment-based immigration. They have helped countless skilled workers worldwide and from all backgrounds obtain H-1B visas. We want to keep you apprised of the latest news concerning this highly sought-after visa. We will be regularly updating this post to keep you up-to-date on the H-1B cap 2023-24 filing season. For more information about the H-1B visa 2024 season, contact us directly to see if you qualify for a free consultation.

The H-1B rule covered in this post is current as of this publication’s date. However, we will keep you posted with updates as they arise.  

The registration for the highly coveted H-1B visa lottery will be conducted between March 1 and March 17, 2023. At the end of that period, attorneys and petitioners will receive emails to check their registration accounts for selection notices. A sample notification is posted below. The email may be sent from [email protected]  to the employer’s and/or attorney’s email address that was used for registration. 

What is H-1B Visa Lottery 2023–24

The H-1B visa is for skilled professionals with at least bachelor’s degrees to work in the U.S. These professionals can be in fields such as computer science, architecture, medicine, dentistry, engineering, accounting, and more. There are a number of H-1B visa benefits that make it a top choice for many professionals seeking employment in the United States. Some of these benefits include:

• Dual intent visa
• Broad requirements
• 3-year initial stay which can be extended
• Ability to port status to a different employer
• Anyone can apply
• Can bring spouse and children
• H-1B visa salary requirements through the prevailing wage

Employers seeking to file H-1B cap-subject petitions for the fiscal year 2023-2024 cap, must first electronically register. Then they need to pay the associated $10 H-1B registration fee. This includes those eligible for the advanced degree exemption. Each employer can only submit one entry per H-1B employee. If their submission is selected, the employer must attest that they’ll file a complete H-1B petition.

Employers seeking H-1B workers subject to the cap, or their authorized representatives, will complete a registration process online. The process only requires basic information about the company and each requested worker. USCIS will then run the H-1B random selection process on those electronic registrations. Only those with selected registrations will be eligible to file H-1B cap-subject petitions.

For the H-1B 2023-24 season, most predictions are calling for over half a million registrations in the upcoming lottery. USCIS conducts the regular cap lottery first, followed by the U.S. master’s cap lottery. The drawing order gives individuals with a U.S. master’s degree an even higher chance of being selected. Due to such low submission rates (not enough to meet the quota), USCIS conducted three rounds in past H-1B seasons so it is a possibility for it to happen again. For FY 2022-2023, USCIS received a total of 484,000 registrations. Immigration experts think USCIS will likely receive close to 500,000 cap registrations in the upcoming lottery period.

This year, the H-1B 2023-24 registration window is from noon E.S.T. on March 1 through noon E.S.T. on March 17, 2023. New accounts can be made for registrations beginning at noon E.S.T. on February 21, 2023. *Representatives and registrants must wait until March 1 to enter beneficiary information and submit the registration with the $10 fee. If enough registrations are submitted by March 17, 2023, USCIS will randomly select registrations and send selection notifications to users’ myUSCIS online accounts. USCIS plans to notify account holders by March 31, 2023.

In past years you may have heard about the USCIS delay to the Trump administration’s January 8th H-1B Lottery Rule. This sought to prioritize cap candidates in higher wage levels until December 31, 2021. The Biden Administration changed the effective date to December of 2021 to review it thoroughly. In a court battle, the government removed the rule from the Federal Register altogether. So H-1B 2024 lottery is based on the standard random selection process rather than priority based on Wage Levels.

What is the Prevailing Wage?

The prevailing wage is the average wage for employees who perform the same or similar jobs. Most employment-based visas require an employer to pay the prevailing wage as a bare minimum, as with the H-1B visa. The Department of Labor (D.O.L.), under the Occupational Employment Statistics (O.E.S.) program, provides the prevailing wage figures that employers will use during the Labor Certification Application (L.C.A.) process.

H-1B Registration Requirements and Timeline for 2023–24

USCIS uses an online pre-registration system to make the H-1B lottery more manageable. H-1B season FY21 was the first year USCIS implemented the online application system. Before that, employers needed to send hard copies of the H-1B application packet, supporting evidence, fee, and Labor Condition Application. The online filing system is much more efficient and timely.

How the H-1B Visa 2023 – 24 Registration System Works

Employers must register their beneficiaries with the USCIS database before the start of the filing window. The registration window will open on March 1, 2023, and end on March 17, 2023. After that, petitions will still be used, but only once a beneficiary has been selected in the lottery to make things more efficient. Here is how this system will work:

1. Employers will pre-register their alien workers inputting information about the workers into the database.
2. USCIS will conduct the H-1B 2023 lottery and choose the beneficiaries—65,000 for the regular cap and 20,000 for the H-1B master’s cap—that will proceed to filing and processing.
3. Within 90 days of being selected, the selected registrants’ employers will then file their petitions with the USCIS for processing along with the appropriate filing fees and supporting documents.
4. If the petition is approved, the H-1B visa will be issued, and the beneficiary’s start date will be October 1st, 2023.

 

Certain employees do not need to go through the H-1B registration process. Those include professionals who have had H-1B status and are changing employers with time still left in their 6-year H-1B allocation. Moreover, professionals that have been counted against the cap and need an extension of their approved status. Also, those who work for cap-exempt organizations (not-for-profits, educational organizations, etc.)

Employers should begin identifying as soon as possible prospective employees who have not had H-1B status in the past but may need to have it starting October 1, 2023. Individuals to keep in mind might include:

• Students or interns who have F1 visa status (working under OPT) and want to change to H-1B
• Some L-1 Intracompany Transferees who are not qualified for green cards as multi-national managers
• Certain E-3 visa holders
• Spouses in H-4, L-2 or E-2 status
• Foreign nationals not selected in past H-1B seasons

How to Sign Up for the H-1B Visa 2023-24 Registration

1. On or after February 21, 2023, at noon E.S.T. create an online account with USCIS.
2. At noon E.S.T. on March 1. 2023, registration opens, and USCIS account holders can submit their registrations along with the non-refundable $10 registration fee.
3. At noon E.S.T. on March 17, 2023, registration closes.
4. USCIS conducts the H-1B 2023 lottery, starting with the regular cap and ending with the master’s cap.
5. On or by March 31, 2023, USCIS notifies lottery winners.
6. If your petition is selected, the earliest that you can file your petition is April 1st, 2023.

Rules for Submission

H-1B Visa 2023-24 season registration has only a few rules to avoid outright denial.

• On March 1, 2023, at noon E.S.T. registration opens and you have until March 17, 2023, at noon EST for submissions. USCIS will not accept registrations outside this window.
• Each sponsor may only submit one registration for each beneficiary. If a single sponsor submits more than one registration for the same beneficiary, all registrations submitted by that sponsor for that beneficiary will be considered invalid and subsequently denied.
  • However, a single sponsor can submit registrations for multiple beneficiaries and;
  • A single beneficiary can have registrations submitted by multiple sponsors.

Required Employer Documents and Information for Each H-1B Registration:

• Employer’s name
• Company’s FEIN (identification number)
• Business address
• Employer’s contact information
• Company’s lawyer’s contact info

Beneficiary Information Required for the H-1B Registration:

• Name
• Birthdate
• Home country and where you maintain citizenship
• Passport number
• Gender

USCIS will also need the H-1B beneficiary’s educational information, like if they received an advanced degree—master’s degree or higher—from a school in the U.S.

The H-1B visa 2023-24 process is relatively straightforward when broken down. Under the regular cap, USCIS randomly selects 65,000 registrations by computer. USCIS will choose an additional 20,000 registrations under the advanced degree exemption. According to the Free Trade Agreement, 6,800 visas will be set aside for citizens of Chile and Singapore.

Recap of eligibility requirements:

• Job offer from U.S. employer for your role
• Proof of bachelor’s degree or equivalent
• Employer must demonstrate not enough qualified workers in the U.S. for the role

Learn about H-1B dependent employer qualifications.

Where to Mail Your Complete H-1B Petition Once Selected

How Will I Know If I’ve Been Selected for the H-1B Lottery 2023-2024?

When you look at your registration online, you will see one of four statuses attached to your case. They are:

• Submitted: This simply means that you have successfully submitted your petition. However, your status may continue to read “submitted” until the end of the fiscal year. This means USCIS is still considering your registration, but it hasn’t been selected or denied.
• Selected: USCIS selected your H-1B 2024 lottery registration, and the sponsor can file an I-129 petition after April 1, 2023. USCIS may allocate different filing deadlines to registrants chosen to ensure the smooth processing of all cap-subject cases. USCIS will indicate the filing deadline on the notice.
• Not Selected: This means that USCIS did not choose your registration. Keep in mind that all registrations USCIS hasn’t denied will either be “Selected” or remain “Submitted” until the end of the fiscal year. Therefore, if USCIS hasn’t chosen your registration, you will not see “Not Selected” on your registration until October 1, 2023.
• Denied: This only happens if a sponsor submitted more than one registration for the same beneficiary. In this case, USCIS will deny all registrations submitted by this sponsor for this beneficiary.

Remember, after March 17, 2023, all registrations will say “submitted.” Around mid-March, some will change to “selected,” “denied,” or stay “submitted.” If USCIS needs to increase the registrations for either cap during the fiscal year, it will select more registrations from the “submitted” pool. After October 1, 2023, the remaining “submitted” registrations will change to “not selected.”

Master’s Cap Order Explained

USCIS conducts the regular cap first. However, due to having all cap-subject registrations, including those for master’s degree-holders, USCIS selects some master’s registrations in the regular cap without entering the master’s lottery. After that, USCIS will enter all unselected master’s registrations into the master’s lottery.

Analyzing Past H-1B Lottery Season & Predictions for H-1B Visa 2023–24

In past H-1B seasons, we saw visa denial rates hit an all-time low. The statistics show that USCIS approved 96% of visas. Under the Trump presidency, the H-1B denial rate was upwards of 24% at one point, and Requests for Evidence (R.F.E.s) were high in addition to NOIDs. In the F.Y. 2022 season, USCIS rejected more than 72% of applications before an adjudicator made an evaluation.

Analysts, including those at the National Foundation for American Policy, cite the Trump-era’s restrictive policies (specifically towards high-skilled foreign nationals) for increasing denials while he was in office.

In the coming season, we think USCIS will likely receive closer to 500,000 cap registrations in the lottery period. That means there is a 1 in 5 chance for applicants with a Bachelor’s degree and a 1 in 4 chance for applicants with a qualifying U.S. Master’s degree.

H-1B Denial Rates by Fiscal Year

The average H-1B denial rate of the last 10 years has been 17.9% Why do they fluctuate so much? One of the biggest reasons is due to the changes in U.S. administration and the policies they enact.

 

Top 10 Employers with H-1B Approvals in 2022

Wondering which companies had the most H-1B approvals? Tata Consultancy Services had the highest number of total continuing approvals last year, followed by Google, Microsoft, Amazon, Meta, Infoys, Apple, Deloitte, Cognizant, and Intel. This data was provided by the USCIS Employer Data Hub. Check out the chart below for a more comprehensive breakdown of the approval rates.

 

Looking Ahead: H-1B Registration Trends

The United States benefits greatly from overseas talent to fill labor shortages across industries. You can see in the chart below provided by the American Immigration Council that the median wage for H1B workers in 2022 was $108,000. Contrast that to the median wage of U.S. workers of $45,760.

Below is a chart comparing the H1B registrations received year-over-year beginning from 2019 and extending to last year. You can see a significant increase is the trend and the most registrations by far were received last year.

 

What happens after the H-1B 2024 lottery selection?

Once an employer receives notice that USCIS has selected the registration for further processing, the employer will have to file the H-1B petition with all supporting evidence during the period allowed by the USCIS. Next, the package will be sent to a service center for approval or rejection. Then,  USCIS assigns a tracking identifier called an E.A.C. number to each petition.

The first three letters of your petition’s E.A.C. number indicate the service center location processing your petition. For example, W.A.C. would mean the Western Adjudication Center in California. The two numbers that appear next correlate to the year followed by the working day. The last five numbers indicate your case number. An example would look like this: WAC-18-021-56974.

Eligibility Requirement for Specialty Occupation

The H-1B job must adhere to one of the criteria below to be eligible for the specialty occupation criteria:

• The job must require a bachelor’s degree or higher or equivalent at minimum.
• The required degree for the H-1B job is considered typical in the industry.

OR

• The position can only be executed by an individual holding a degree due to its complexity.
• It is usual for the employer to require a degree or equivalent for the position because the skills are so specialized.

What if I’m Not Eligible for an H-1B Visa Lottery in 2023-24?

If you’ve determined that you are not eligible for an H-1B visa, consider filing for an H-2B visa, or even an L-1 visa may be a viable option. An L-1B visa is also a non-immigrant visa option that permits employers based in the United States and abroad to transfer personnel from foreign offices to operations based in the U.S. for up to 5 years.

The J-1 visa might also serve as an alternative. Instead of being tied to an employer, the J-1 is based on a government-approved program. Students, doctors, counselors, and nannies are among the many occupational programs that can take advantage of this visa.

What are Cap-Exempt Petitions?

A cap-exempt petition is one that USCIS previously counted against the cap.

It can also be one that was used as a way to extend the H-1B worker’s time in the U.S. or to change the terms. Notice that USCIS does not require some positions with qualified workers to be subject to the annual quota even if the petitioner is already counted against it.

However, there are three main categories of occupations that are considered cap-exempt from the start:

• Jobs for an institution of higher education
• Positions for non-profit organizations that are associated with an institution of higher education
• Jobs for governmental research centers

The fact that there are cap-exempt jobs may tempt some to think that they can simply petition under a cap-exempt job and switch once they have entered the country to circumvent the annual cap.

However, it is essential to note that you need to have that employer file another petition whenever you change employers. If that employer is not cap-exempt, USCIS will enter the petition into the H-1B lottery. If it is not selected or is denied, you will not be able to make this transfer. Therefore, changing from a cap-exempt to a cap-subject petition as a way to get around the H-1B cap is not possible.

How Does Premium Processing Work?

Premium processing service allows an employment-based petition/application to be expedited, generally within 15 days. The service fee is $2,500.

It is important to note that purchasing premium processing only reduces the processing time for your I-129 petition. It does not make you cap-exempt, nor does it guarantee you a spot in the H-1B 2023 lottery. If your petition happens to be selected, then your start date will still be October 1, 2023, like all other applicants.

H-1B Visa Fees 2023-24

With the implementation of the electronic registration system last year, the H-1B fee structure changed from prior years. Employers only need to file the registration fee of $10 to enter the H-1B 2024 lottery. However, if an alien’s registration is chosen, their employer will be responsible for the following fees:

Here’s one scenario to illustrate how the fee would be applied to a foreign I.T. firm.

Company X has more than 50 employees and has more than 50% of people on the H-1B visa. If they are filing for the H-1B visa with premium processing than they would be responsible for the base ($460), fraud fee ($500), training fee ( $1,500 if applicable), Public Law 114-113 fee ($4,000), premium processing fee ($2,500 if applicable), and attorney fee.

Remember that the Public Law fee is only applicable to employers with more than 50 employees. Also, more than half of those employees must be H-1B holders for the fee to apply. Speak with your immigration attorney to determine precisely which fees should be paid.

VisaNation Law Group’s Attorney Fee for H-1B Visa 2023-24 Season

Since the stages are now tiered, and only certain companies will eventually file the complete petitions, the legal fees will be as follows:

• One: $550 for the initial registration process, which includes all preliminary case analyses required to file the case, such as S.O.C., duties, documents, educational check, evaluations, if necessary, FEIN, etc.
• Two: $2,500 will be due if USCIS selects the petition in the lottery for filing, which includes all form/support letter preparation plus case filing within the timeframe
• Three: $500–$1,500 for responding to a Request For Evidence (R.F.E.) – due only if USCIS  issues an RFE on your case.

Please note that H-1B petitioners have the option to complete the initial registration themselves. But, again, note that if you complete the registration incorrectly, the  USCIS may later deny the petition. Once the petition has been confirmed as being selected in the H-1b 2024 lottery, employers may retain VisaNation Law Group for the complete filing. If that route is chosen instead, the legal fee for preparing the H-1b filing will be $2300. This fee excludes the cost for a response to any possible R.F.E. that USCIS may issue on the case and any H-4 application required. The fee for an R.F.E. response will remain between $500–$1600, depending upon the complexity of the R.F.E.

H-1B Visa Sponsors 2023-24

Finding the appropriate H-1B visa sponsor is often one of the biggest challenges. One viable source for finding a suitable sponsor is an H-1B Visa Sponsor Database. You can filter your search by city or zip code and see information detailing what sorts of jobs they have filed in past years. We expect more employers to seek H-1Bs this year due to the labor shortages in the U.S. and the increases in demand for specific industries due to the pandemic.

*Please note that we take no responsibility for the accuracy of the information in the link above.

American universities are a great place to look because academic institutions are not subject to the annual cap restriction, so they can sponsor anyone if they think they’re suitable for the job.

What to Do After Filing H-1B Petition?

Form I-797C, Notice of Action is issued by USCIS to communicate information pertaining to receipt, rejection, transfer, reopening or an upcoming appointment. should you be selected in the lottery. In the example below (disclaimer – names, IDs and personal information has been changed for privacy) you’ll see it has the title Fiscal Year 2023 Selection and then under it has the company, employer identification number, the person the registration was submitted on behalf of and the confirmation number. If selected, the next paragraph will say “This registration was selected toward the number projected as needed to reach the congressionally mandated cap (regular cap).” In the next sentence you will see what dates the company needs to file the corresponding H-1B petition in. Be aware, no other beneficiary apart from the one identified in the I-797C may have a petition submitted for. The petition should also include the start date of October 1, 2021.

If USCIS selects your registration in the H-1B 2024 lottery, your employer will need to file a petition to move on to the adjudication stage, meaning that it will be processed. An evaluating immigration officer will decide if your H-1B case is approved or denied/rejected. If it is approved, then you will have one of two options:

• Wait until October 1, 2023, for USCIS to enact your H-1B status as soon as you start working. This is only available if you are already in the U.S. under a different nonimmigrant visa status and can maintain that status until you begin working.
• If you are outside the U.S. or your current nonimmigrant status will expire before October 1, 2023, you will need to make an appointment with the U.S. Consulate or Embassy in your home country and go through consular processing.

Consular Processing

You must have already completed and paid for the DS-160 online nonimmigrant application when you go to your appointment. Be sure to bring a printout of the confirmation page and the payment receipt. The DS-160 costs $190.

You may or may not be required to participate in a one-on-one interview with a consular officer. The

USCIS reserves the right to interview whomever they choose before entering the country. Also, it would be wise to expect an interview because of the recently increased regulations and scrutiny surrounding the H-1B.

At your H-1B interview, the officer will ask you basic questions about yourself, your job, employer, and travel history. The best advice is to answer all questions quickly and honestly. Saying “I don’t know” is always preferable to lying, which could have severe repercussions in the future.

In-person Interview Waiver Extended to December 2023

The Secretary of State, in concurrence with the U.S. Department of State (D.O.S.), has announced that the waiver of in-person interviews would be extended until December 31, 2023. The consular officer has the discretion to waiver the requirement for certain H-2 applicants, certain students, professors, research scholars (F, M J visas) and certain temporary workers (H-1, H-3, H-4, L, O, P and Q applicants). Applicants renewing a visa in the same classification within 48 months of the prior visa’s expiration are also eligible for interview waiver.

To be eligible, first-time applicants must meet the following:

• Applying for a visa in their country of nationality or residence
• Be a citizen or national of a country that participates in the visa waiver program (V.W.P.)
• Never been denied a visa (exceptions are made if the denial was reversed or waived)
• Previously visited the United States with authorization through the Electronic System for Travel Authorization (ESTA)

Applicants renewing any visa within 48 months of its expiration are eligible for the dropbox process.

Avoid These Common H-1B Filing Errors

There are several issues and filing errors we see repeated, which can interfere with getting an H-1B approval.

Creating the Wrong Type of Account

One of the top mistakes USCIS noticed with H-1B registrations was creating the wrong type of account. There are three types of online accounts that can be made:

• Applicant/Petitioner/Requestor Account: This is for individuals to prep and file applications, petitions, and other benefit requests. This is not the correct type of account to submit H-1B registrations.
• Attorney/ Representative Account – This type of account is designed for attorneys or representatives to submit H-1B registrations on behalf of their petitioner client. This account also allows you to submit a Notice of Entry of Appearance as Attorney or Accredited Representative (Form G-28).
• Registrant Account – If you are a petitioner wanting to participate in the H-1B process, this is the type of account you should create.

Choosing an Incorrect I-129 Start Date

Sometimes, during the filing process, applicants will choose the incorrect start date on the I-129. Check with your attorney to ensure that all dates, wages, and essential details are accurate to avoid having your petition denied.

Incomplete Job Description

To ensure that your job description meets all the necessary criteria, it’s best to have it thoroughly reviewed by a qualified H-1B visa lawyer.

Duplicate Entries

Petitioners can only have “one registration submitted per beneficiary per fiscal year.” As a rule of thumb, employers should not file more than one petition for an employee. Suppose a second petition is necessary for an employee vis-a-vie an affiliate company or subsidiary of the original petitioning employer. In that case, it’s imperative to demonstrate why both filings are necessary. The last thing you want USCIS to do is mark the filing as a duplicate or send a Request for Evidence (R.F.E.), so discuss the best way to handle this situation with your attorney.

Untimely Filing

Submitting your petition after the date USCIS issued to you can result in a delay in processing. To ensure that you do not create this delay, file your petition with plenty of time to spare.

It is important to note that the USCIS service center only considers a submission as timely if it reaches the center before the expected date. Therefore, because your petition will first reach a P.O. box, be sure to submit it well before the last day to guarantee that the service center will have time to collect it.

Labor Condition Application (L.C.A.) Delays

We’ve seen cases where the iCert visa portal system doesn’t always recognize the employer/company’s Federal Employer Identification Number or FEIN. This occurs because a pre-verification has not been completed before the L.C.A. is submitted.

Unacceptable Delivery Method

Adjudicating service centers are very particular about the way that petitions are submitted. Delivering your petition by hand or through some other unconventional method can result in not having your petition processed.

Send your petition via the United States Postal Service, FedEx, U.P.S., or some other bonded delivery service to ensure that you are using an approved delivery method. Consult with your immigration attorney to learn which services are considered bonded.

Choosing the Wrong Service Center

The last issue that often comes up is filing with the wrong service center. Petitions which do not include the necessary fee will be denied, and those sent to the incorrect service center will also not be processed correctly. Be sure to write a separate check for each filing fee and sign all checks before shipping.

Check out this H-1B Application Process Step-by-Step Guide. 

H-1B 2023–24 Challenges

Because of the exact nature of the immigration process, complications can quickly arise from unique circumstances. Working closely with an immigration attorney can help you decide if these challenges apply to you and what you can do about them.

If you are the founder, co-founder, or sole proprietor of the company that you wish to work through, then you will be fulfilling the role of both the employer and the employee, which the USCIS does not accept. If your company’s structure allows for a board of directors to pay you instead of paying yourself, you may be able to secure an H-1B visa as a business owner.

However, you can start a business on an H-1B visa. First, you must establish an entity—such as a board of directors or a C.E.O.—who controls your salary, tasks, and employment status. Then, the entity must petition on your behalf. You cannot self-petition on an H-1B visa.

Another issue developed when the employer petitioned on your behalf is a small business. The L.C.A. has particular rules about how much an employee can be paid. If the small business does not have the capital to fulfill these requirements and pay the petition filing fees, you will not be able to file.

H-1B Visa 2023–24 Denial

USCIS often denies H-1B visas to those it deems unqualified. However, you can optimize your approval chances if USCIS selects your petition in the H-1B 2024 lottery by taking the proper precautions.

The first thing to realize about this process is that there are essentially two refusal states: rejection and denial. These hinge on the two-pronged approval process each H-1B petition goes through. The first prong involves having an immigration officer look over your case to determine whether:

• All of your information is complete, consistent, and accurate.
• You have provided enough evidence and documentation.
• Your employer has paid the appropriate fees to the right places.

If your petition does not pass this phase, USCIS will likely reject it without a refund. Fortunately, the answer to this issue is often to simply re-file with the help of an experienced H-1B attorney.

However, suppose your petition passes this phase. In that case, it will go on to phase two, which means that the officer will determine if your evidence, background, occupation, and qualifications meet the H-1B visa requirements for 2023. If not, then you may experience an H-1B denial. In this case, re-filing may not be the solution.

Legal Motions

It is occasionally possible for petitioners to file legal motions for an unfavorable outcome. Petitioners can make two main motions here:

• Motion to reconsider: Take this route if you and your attorney believe that the immigration officer evaluating your case erroneously denied your H-1B petition.
• Motion to reopen: When you have acquired new evidence or documentation to support your case if evaluated along with the principal evidence.

Appeals

In contrast to the legal motions, which work with the evaluating officer, an appeal goes through a third party for an unfavorable decision, the Administrative Appeals Office. Unfortunately, the USCIS will usually send you a denial notice that includes a line prohibiting any appeals.

H-1B Visa 2023–24 Requests for Evidence

Occasionally, the USCIS will send a Request for Evidence (R.F.E.) rather than deny your petition outright. If the evaluating officer feels that some supporting documentation would make your case clear, an R.F.E. is usually the way to go. If you receive an R.F.E., you will need to respond within the given time window—usually up to three months. There are a few ways to reply to this:

• Complete response: This means that you submit all of the requested evidence simultaneously with your answer.
• Partial response:  These are the most common responses. In a partial response, you only submit some of the requested evidence either because you do not wish to present it all or do not have the evidence asked.
• No response: You can always withdraw your application.

In any case, your first step should be to bring your R.F.E. to your immigration attorney to decide what to do next. For example, the USCIS may be questioning the legitimacy of your employment, the relationship between you and your employer, the nature of your specialty position, or even your degree credentials. The response should fully argue why the submitted evidence addresses all issues brought up by the USCIS.

H-1B Visa Requirements 2023–24: Amendments

There are a few cases where you need to have a new I-129 petition filed on your behalf. These include changing employers and extending your H-1B status, among other things. However, if you remain with the same employer but some aspect of your position is changing considerably, you may need to have your employer submit an H-1B amendment so that your petition on file can reflect the most accurate information.

The primary understanding is that USCIS requires an H-1B amendment for situations in which a material change occurs. A material change means that your job duties or location have changed significantly. For example, if you have gotten a promotion on your H-1B, you may or may not need to have an amendment filed. It all depends on whether or not your job duties have changed. Just make sure that your new position meets the same H-1B requirements as the old one and relates to your degree.

If you have an I-140 on file for an employment-based green card and are changing your job, make sure that everything is in order regarding the job you are using for your immigrant visa.

Grace Period

If you are currently under H-1B status and lose the job through which you obtained your status, this could cause difficulties in your immigration journey.

H-1B holders get a 60-day grace period that begins the day that your sponsor is no longer your employer. USCIS gives this period so that you can find a new H-1B sponsor, change your status to a different visa, or prepare to leave the U.S.

What About the Spouses of H-1B Lottery 2024 Winners?

The Obama administration established a rule in 2015 allowing those with H-4 visas (the spouses and dependents of H-1B holders) to obtain employment authorization to work while in the U.S. provided that their H-1B holder had a pending I-140 petition for a green card. The Biden Administration has kept the rule in place and has proposed legislation that will make the rule permanent, with the only way of rescinding being a law passed by Congress.

H-1B Visa 2023–24 Latest News

As previously mentioned, the Department of Homeland Security withdrew the Trump Administration’s Prevailing Wage Rule, and it will not go into effect during the H-1B 2024 lottery season.

The selection order would remain the same with the regular cap, and then the H-1B advanced degree pool. In the event of a satisfactory wage survey, USCIS would use the highest corresponding O.E.S. wage level instead. If this system gets put into place, there will be changes to the I-129 Form to gather information regarding wage levels.

The argument in favor of this rule in the past was that it incentivizes H-1B employers to offer higher wages or to petition for positions requiring higher skills. Keep a close eye on our blog to be made aware of any changes related to H-1B 2024.

H-1B Visa 2023–24 Frequently Asked Questions

Below are some H-1B visa F.A.Q.s that we commonly receive.

If I would like to work in the United States, can I just apply for an H-1B visa by myself?

You must have a job offer from a U.S. company or organization to apply for an H-1B visa. If you are a business owner, you will need to set up an entity within your company that controls your employment. That entity must file the petition on your behalf.

If I have an Associate’s (two-year) degree plus one year of work experience as an engineer, can I qualify for the H-1B visa?

You must have at minimum a U.S. bachelor’s (four-year) degree or its equivalent to qualify for the H-1B visa. Regarding work experience, three years of working is equal to one year of university. For example, if you had six years of work experience plus two years of college, you could qualify if your work experience and the degree are relevant to your occupational title.

I currently have a job with a public school system as a teacher. Are schools subject to the annual quota?

Only if the school district has an approved petition based on the university cap exemption after 2006.

Are there provisions for the continuity of H-1B petitions if there is a restriction of the company?

There is continuity in this case. An amended H-1B petition isn’t required when a new entity takes over the originally approved employer’s interests and responsibilities and whereas the conditions of employment are the same.

Under section 105 portability provisions, how does my employer complete the I-9 verification requirement?

This example is comparable to the 240-day grace period of 8 C.F.R. section 274.12(b)(20), which permits employment with the same employer for up to 240 days after an extension petition is filed.

Can I file multiple or duplicate petitions? What happens if I do?

Employers may not file more than once or duplicate H-1B visa petitions for the same employee. USCIS will deny multiple or duplicate petitions filed by an employer for the same H-1B worker to ensure fairness.

Will USCIS refund my fees for filing twice?

You will not receive a refund for these filing fees. The only time that USCUS will issue a refund is if:

• USCIS has asked for an unnecessary form that required a fee
• You submitted a fee that was greater than what is listed
• USCIS fails to process a petition filed with premium processing in the 15-day time period

Where do I mail my H-1B petition?

Your lawyer should have the correct service center’s information to file with, which will depend on the beneficiary’s work locations specified on the petition application.

What is the H-1B visa 2024 lottery date?

The H-1B visa 2023-24 submission period is March 1–17, 2023.

What are the advantages of preparing early?

There are many advantages to preparing early. As with most situations in life, when you plan ahead of time, you’re better able to respond to challenges down the road. Employers can begin considering which one of their workers might require H-1B cap-subject filings. Foreign nationals and their respective employers should work side-by-side throughout the process to meet all criteria.

Why work with an attorney for the H-1B registration process?

First, the USCIS will not consider a cap-subject H-1B petition filed adequately unless the petition is based on a valid, selected registration for the same beneficiary and the appropriate fiscal year.

Proper H-1B registration includes ensuring the candidate is classified correctly under the master’s or bachelor’s cap. Only specific individuals qualify for the master’s cap despite having U.S. master’s degrees. In addition, only a certain number of years of work experience equals a bachelor’s degree. Applicants cannot make corrections after submitting H-1B registrations. USCIS will deny incorrect H-1B registrations if the case is selected for filing.

Second, although petitioners can register multiple aliens during a single online submission, a petitioner may only submit one registration per beneficiary in any fiscal year. Suppose a petitioner submits more than one registration per beneficiary in the same fiscal year. In that case, all registrations filed by that petitioner relating to that beneficiary for that fiscal year will be considered invalid.

Third, petitioners have a small window to ensure the cases have the proper strategies and all documents required. Having an adequate case foundation at the outset is essential whether the case is ultimately selected or not.

Hiring a qualified attorney to ensure that stage one of the process is handled correctly will prevent issues if the case is selected for filing.

What is the length of stay on an H-1B visa in 2023?

USCIS grants the visa for up to three years with the option to extend it to a maximum of six years. There are special cases where the government may give a stay longer than six years. This is usually in conjunction with a pending I-140 petition so that you can maintain your status.

What fees are my employer responsible for?

Per immigration law, the employer is responsible for paying the training fee when applicable and the fraud fee.

Is premium processing an option?

Yes, you have the option to elect for premium processing at an additional cost of $2,500.

Could I avoid being subject to the cap if I filed for premium processing?

Filing for premium processing does not make you exempt from the cap. Premium processing is simply a way to expedite the process. The USCIS explicitly ensures 15 calendar days for processing those petitions, or the USCIS will issue a refund of the service fee.

Who is responsible for setting the H-1B Visa 2024 cap amounts?

Congress determines the current annual cap for the H-1B visa category. Also, remember USCIS sets aside 6,800 visas for citizens of Chile and Singapore following the Free Trade Agreement.

Certain H-1B workers who perform services for the Commonwealth of the Northern Mariana Islands (CNMI) and Guam may also be exempt from the cap under certain circumstances.

What is a Labor Condition Application (L.C.A.)?

A Labor Condition Application is what your employer must certify and send when filing your petition. USCIS will also accept a copy of this document. Always be mindful of the L.C.A. processing times and plan your documentation accordingly.

To get an L.C.A., your employer must make all of the four attestations required for this application:

1. The H-1B employee will be paid the prevailing wage for the requested position according to the position’s geographic location.
2. The H-1B employee’s employment will not negatively impact the current employees working for the employer.
3. The employees currently working for the employer have been notified of the intent to hire the H-1B employee.
4. The location in which the H-1B employee will be working is not under a strike or a lockdown.

Ultimately, the L.C.A. protects the current employees from incursions on their employment. By attesting that your employment is not to subvert or replace current employees’ work, this tells the USCIS that your employment will benefit the U.S. job economy rather than damage it.

Note that if USCIS certifies an application for multiple workers, you’re required to give the name and case receipt number of any worker who previously used the L.C.A.

DOES USCIS permit more than one sponsor for my H-1B Visa?

According to current regulations, if you as a foreign worker intend to perform services for more than one employer, each one must file a separate petition. However, if USCIS approved both petitions and you select one employer but later decide to leave that employer for the second one, no new petition is necessary.

However, if you choose to transfer your employment to an employer that has not yet filed a petition, you will need to have that employer file a new petition on your behalf.

How do I speed up or expedite my H-1B transfer?

An H-1B transfer must follow the same process as you would for filing a new petition. However, one big difference between the regular H-1B filing and a transfer is that a transfer is not subject to the cap since it already has an H-1B status. Because of this, premium processing may be an effective way to shorten your H-1B transfer processing time in 2023.

Can I work for my employer anywhere in the country once USCIS approves my status?

When USCIS approved your H-1B visa, they considered the specific employment location, qualifications, and prevailing wage for the area.

If the worksite changes, you must submit an amendment with certification for the new location during your employment. In some situations, you may be exempt from filing the amendment, but it’s best to contact your lawyer if the terms of your job suddenly change.

Is there a reason some H-1B petitions take longer than others?

Many people have questions regarding this topic. Say, for example, you submit two petitions at the same time. That doesn’t mean USCIS will necessarily approve it within the same time frame.

Why? Each USCIS service center has a different workload for H-1B visas in 2023, so it’s hard to know when USCIS will process the paperwork. For short-on-time cases, it’s best to consider premium processing.