FY 2023 H-1B Cap Season will Remain the Same for Now
Jioselin Juarez • October 16, 2021
H-1B Registration Rule not Enforceable
During former President Donald Trump’s administration, the U.S. Citizenship and Immigration Services (USCIS) announced on November 2, 2020, that the H-1B lottery system was going to prioritize wages.
The H-1B registration rule changing the lottery system was to take effect on March 9, 2021. However, on February 8, 2021, the Department of Homeland Security (DHS) delayed the effective date to December 31, 2021, per President Biden’s memorandum to review new or pending regulatory rules.
On September 15, 2021, the U.S. District Court for the Northern District of California determined in Chamber of Commerce, et al. v.
DHS, et al., that DHS final rule entitled “Modification of Registration Requirement for Petitioners Seeking to File Cap-Subject H-1B Petitions” was unenforceable because Chad Wolf was not lawfully appointed as Acting DHS Secretary at the time that DHS promulgated the rule. Therefore, the U.S. District Court for the Northern District of California ruling prevented the replacement of the current H-1B lottery system with a wage-level-based selection process.
What is an H-1B visa?
An H-1B visa is a non-immigrant visa, which allows a U.S. Company to employ foreign workers in specialty occupations. A specialty occupation is one that requires theoretical or technical expertise, which requires a minimum of a bachelor’s degree in the specialty.
Each year there is a limited number of H-1B visas issued. USCIS is allowed to grant 65,000, plus an additional 20,000 to foreign workers with advanced degrees.
Each year USCIS opens the H-1B registration process around the first week of March. After the H-1B registration closes, the employer receives a USCIS account notification email if the foreign worker was selected. At which time, the employer has 90 days to file the H-1B petition to USCIS.
Please schedule a consultation with one of our immigration attorneys to discuss the H-1B requirements and process.
This blog is not intended to be legal advice and nothing here should be construed as establishing an attorney client relationship. Please schedule a consultation with an immigration attorney before acting on any information read here.
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