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H-1B caps have been reached for FY 2023, chances of selection continue to decline

8.31.22

The U.S. Citizenship and Immigration Services announced last week that it has reached the caps for the Fiscal Year 2023 regular and master’s (advanced degree) H-1B lotteries and has sent non-selection notifications to the online accounts of employers and employer representatives whose registrations were not selected.

Fiscal Year 2023 runs from October 1, 2022, through September 30, 2023.

The chances of selection for H-1B visas have continued to decline since Fiscal Year 2020 because of the continued increase in the number of registrations. In FY 2020, there were 201,011 registrations. In Fiscal Year 2021, there were 275,000, and in Fiscal Year 2022, there were 308,613. For FY 2023, there were 483,927 registrations filed, almost 150 percent more than in FY 2020. Meanwhile, the number of available slots has remained the same.

The H-1B cap lottery is held in March of each year. Employers or their representatives have the chance to register to be able to file an H-1B petition for a beneficiary. The regular H-1B visa cap is 65,000, and the advanced degree cap is 20,000. Selections are made at the end of March, and those selected can file petitions at any time during the 90-day period that begins on April 1.

In years when the caps are not reached, the USCIS makes “supplemental selections.” In FY 2023, there were enough petitions filed from the selected registrations, so no supplemental selections were made.

Nonetheless, some employers may qualify for “workarounds.” Employers who are exempt from the cap can continue to file petitions for FY 2023. In addition, “Petitions filed for current H-1B workers who have been counted previously against the cap, and who still retain their cap number, are exempt from the FY2023 H-1B cap,” provided that they are applying for the remaining portion of the six-year period of admission or are seeking a seventh year in accordance with the American Competitiveness in the Twenty-First Century Act. This latter category includes petitions filed to do the following (quoted from the USCIS announcement with minor edits):

• Extend the amount of time a current H-1B worker may remain in the United States

• Change the terms of employment for current H-1B workers

• Allow current H-1B workers to change employers

• Allow current H-1B workers to work concurrently in additional H-1B positions

Constangy’s Immigration Group will continue to keep you up to date with immigration law developments.

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