On Monday, March 27, 2023, U.S. Citizenship and Immigration Services (USCIS) announced that the agency had completed the random numeric selection process (lottery) for allocating H-1B numbers among the properly submitted registrations under both the H-1B Regular Cap and H-1B U.S. Master’s Cap. 

USCIS has also now completed the process of notifying the registrations that have been selected. Registrations selected in the lottery will be eligible to file an H-1B petition beginning April 1, 2023. Selected registrants will have 90 days to file H-1B petitions. 

Registrants’ USCIS online accounts will now show one of the following for each individual applicant’s registration: 

• Submitted – The registration has been submitted and is eligible for selection. 
• Selected – Selected to file an H-1B cap petition. 
• Denied 
• Invalidated-Failed Payment 

Non-Selected Registrations  

Properly submitted registrations that have not been selected will remain in the system as valid registrations with their status designated as “Submitted” for the remainder of the fiscal year. These remaining submissions will be available for selection in the future if the current fiscal year cap reopens. The cap could reopen if a relatively high number of registrations do not result in actual filings with USCIS during the 90-day filing window or H-1B petitions are denied. This means there is still a chance, currently unquantifiable, that registrations not updated as “selected” at this time could still be selected in the future. Such selections did occur in prior fiscal years (but not last year) when the USCIS conducted a second and even a third selection. Foster recommends that employers continue to monitor their emails closely for notifications from USCIS of H-1B cap registration selections. 

Categories of H-1B Petitions Not Subject to the H-1B Cap 

H-1B visa numbers remain available for citizens of Chile and Singapore pursuant to trade agreements that set aside H-1B numbers under each year’s quota. Additionally, the following types of H-1B petitions are not subject to the annual H-1B cap and may be filed without numerical limitation: 

1. H-1B petition extensions and amendments for existing H-1B employees; 

1. H-1B change of employer petitions for candidates who were counted under a previous year’s H-1B cap, who hold H-1B status, and who are seeking a change of employer; 

1. H-1B petitions on behalf of employees of institutions of higher education; 

1. H-1B petitions on behalf of employees of nonprofit organizations affiliated with institutions of higher education; 

1. H-1B petitions on behalf of employees of nonprofit research organizations or governmental research organizations; 

1. H-1B petitions on behalf of candidates who were previously granted H-1B status in the past six years; and 

1. H-1B petitions filed on behalf of J-1 nonimmigrant physicians who have received a Conrad 30 J-1 waiver. 

For more information on a potential H-1B cap exemption, please contact your Foster immigration attorney. If you are unsure whether a particular organization may meet the requirements for H-1B cap exemption, or you wish to explore how it may qualify in the future, your Foster immigration attorney can assist you in evaluating the affiliations and preparing the arguments on behalf of your organization.  

Possible alternatives to H-1B Classifications 

While the H-1B cap for Fiscal Year 2024 has been reached for all but Chileans and Singaporeans, candidates for the H-1B classification often qualify under one or more alternative nonimmigrant classifications. The following classifications remain available, often without numerical limitation, for qualifying candidates to fill qualifying positions:  

The TN nonimmigrant category is an appropriate alternative for Canadian and Mexican citizens seeking admission into the United States for employment in certain professional categories in accordance with the United States-Mexico-Canada Agreement (USMCA). The USMCA list of professional classifications for which TN status is available includes, but is not limited to, the following professional occupations: Engineer, Accountant, Architect, Computer Systems Analyst, Geologist, Geophysicist, Graphic Designer, Management Consultant, Scientific Technician/Technologist (including Engineering Technicians), and various occupations in the medical and allied health professions. 

The H-3 visa category may be used for the temporary training of qualified foreign nationals in the United States pursuant to a detailed, established training program.  

The L-1 category is for international transferees who have worked with a company abroad for at least a year and are being transferred to the United States to continue working with an affiliate, parent, subsidiary, or branch office of the company in the United States. Employment must have been and must continue to be in a managerial, executive, or specialized knowledge capacity.  

The E-1 and E-2 Treaty Trader and Treaty Investor categories may be used for employing qualified personnel with companies in the United States where the company maintains the nationality of a country with which the United States has entered into an applicable trade or investment treaty. Generally, the prospective employee must be coming to the United States to engage in employment with the company as an executive, supervisory, or essential employee in order to qualify. 

The E-3 nonimmigrant visa category is available for Australian citizens who will be employed in the United States in a specialty occupation. The requirements for this category are similar to those for the H-1B category.  

The O-1 Alien of Extraordinary Ability category would be an appropriate alternative for those individuals who have reached the pinnacle of their fields of endeavor and have sustained national or international acclaim for their extraordinary achievements.  

F-1 students may apply for Optional Practical Training (OPT) work authorization for a validity of one year after completion of their degree program at a qualifying U.S institution. Additionally, students who graduated from a qualifying STEM degree program may apply for an additional period of OPT work authorization (“STEM Extension”) for up to 24 months beyond the standard one-year period, for a total of 36 months of eligible OPT work authorization. 

In addition to these work-authorized visa categories, dependent spouses of E and L visa holders are work authorized incident to status with a properly annotated I-94, and H-4 spouses of certain H-1B visa holders are eligible to apply for work authorization. Contact your Foster immigration attorney for more information on potential work authorization for any candidates who have E, L, or H-1B spouses in the United States.  

Finally, under certain circumstances, a more direct route to permanent residency may exist and could be considered for individuals who meet established criteria and are classifiable under an employment-based immigrant visa category for which immigrant visa numbers are readily available under the annual quota system for immigrant visas.  

For more information regarding these potential alternatives to the H-1B classification, contact your Foster immigration attorney. Your attorney will be glad to assist you in determining whether a candidate may qualify for one of these nonimmigrant classifications and can assist you in developing an appropriate case strategy for collecting the information and documentation required to proceed. Foster will provide additional updates on H-1B cap adjudications via our firm’s website at www.fosterglobal.com.