On Tuesday, August 23, 2022, U.S. Citizenship and Immigration Services (USCIS) announced that the agency had received enough H-1B petitions to meet both the H-1B Regular Cap (65,000) and H-1B U.S. Master’s Cap (20,000). USCIS received 483,927 H-1B registrations and initially selected 127,600 registrations to meet the FY 2023 numerical allocations.

USCIS has also now completed sending non-selection notifications to registrants’ online accounts. The status for registrations properly submitted but not selected under the FY 2023 H-1B numerical allocations will now indicate:

• Not Selected: Not selected – not eligible to file an H-1B cap petition based on this registration.

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

H-1B1 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;
2. 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;
3. H-1B Petitions on behalf of employees of institutions of higher education;
4. H-1B Petitions on behalf of employees Nonprofit Organizations affiliated with institutions of higher education;
5. H-1B Petitions on behalf of employees of Nonprofit Research Organizations or Governmental Research Organizations;
6. H-1B Petitions on behalf of candidates who were previously granted H-1B status in the past six years; and
7. 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 2023 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 an applicable trade or investment treaty. Generally, the prospective employee must be coming to work 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. 

In addition to these work-authorized visa categories, dependent spouses of E and L visa holders are authorized for employment “incident to status,” which means they are generally work-authorized the moment they enter the United States in E-1/E-2/L-2 status, 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 spouses with E-1/E-2, L-2, or H-1B status in the United States.

Finally, under certain circumstances, a more direct route to permanent residence 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 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 a different nonimmigrant classification and can assist you in developing an appropriate case strategy for collecting the information and documentation required to proceed. Additionally, Foster recommends considering which candidates and employees that the employer may wish to sponsor for an H-1B next year with the next H-1B cap registration in early March 2023.

Foster will provide additional updates on H-1B cap adjudications via our firm’s website at www.fosterglobal.com.