December 3, 2023

Immigration Green Card

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H-1B Cap Season Planning and Other Updates From USCIS | Tarter Krinsky & Drogin LLP

3 min read

Although the economic expectations for 2023 seem uncertain, demand for H-1B visas for skilled workers in the next year will likely remain high. As a result, we urge employers to start assessing their current and prospective employees’ needs ahead of the March 2023 H-1B Cap Registration period.

The H-1B Cap Season: March 2023

The H-1B nonimmigrant visa is one of the most highly utilized and sought-after temporary work visas. It facilitates the employment of foreign nationals entering the United States to perform employment in “specialty occupations,” which are occupations requiring at least a bachelor’s degree or equivalent to perform temporary duties in the United States. Please note that Petitioners may submit only one (1) H-1B Registration per H-1B applicant.

The H-1B visa is limited to 85,000 visa petition submissions per cap season and employment start dates for employment occur on October 1st of each government fiscal year. H-1B visa petition submissions to U.S. Citizenship and Immigration Services (USCIS) may be filed up to 180 days in advance of the commencement of employment. Traditionally, April 1 is the first day of the year that H-1B filings are accepted by USCIS.

Since 2020, USCIS has implemented an H-1B pre-registration process which allows employers to register their individual H-1B submissions online for one (1) selected foreign national applicant. Multiple filings by the same employer for one foreign national will result in disqualification of the submission. More than one employer may file an H-1B petition for the same foreign national. In 2020 and 2021, at the height of the Covid-19 pandemic, USCIS did not receive sufficient H-1B registrations and, therefore, conducted a second lottery. In 2022, however, USCIS received over 483,000 H-1B registrations and did not conduct a second lottery. USCIS is expected to conduct an H-1B Lottery in March 2023. Petitioners selected in the lottery are asked to file their H-1B visa petitions within the 90-day period that starts on April 1, 2023.

We expect the next H-1B registration period to occur during the first two weeks of March 2023. It is a good idea to start planning for H-1B registrations in early January 2023.

How Employers Can Plan for the H-1B Cap Season

1. Identify the foreign national(s) to be sponsored for H-1B visa status.

2. Choose the job in a specialty occupation to be offered to the foreign national.

3. Decide the salary to be offered to the foreign national.

4. Assess the employee’s qualifications.

5. Contact your immigration attorneys to start gathering the relevant documentation and devising a winning case strategy.

Green Card Automatic Extension for Naturalization Applicants

On December 12, 2022, USCIS updated its Policy Manual to allow for the automatic extension of Permanent Resident Cards (“Green Cards”) validity for permanent residents who have submitted their citizenship/naturalization applications to USCIS on or after December 12, 2022. These individuals will receive a Naturalization Application Receipt Notice for their N-400 submission with a 24-month automatic notation extending their permanent resident status. In addition to constituting evidence of continued permanent resident status, the extension with the expired resident card will serve as evidence of identity and employment authorization under List A of Form I-9 (Employment Eligibility Verification). Applicants who filed naturalization applications prior to December 12, 2022 must file Form I-90 or receive an ADIT passport stamp to maintain valid evidence of their lawful permanent resident status for naturalization purposes.

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