Written by Lauren Hazday and Alina Charniauskaya Mehta

Introduction: To obtain H-1B status for the first time, an employer or prospective employer of a foreign worker is required to go through the annual randomized H-1B lottery often referred to as “H-1B cap.” The H-1B lottery is run to meet the annual quota of 85,000 (20,000 reserved for U.S. advanced-degree holders and 65,000 for holders of U.S. bachelor’s degrees or the foreign equivalent). The employer must first register an account with USCIS, submit a registration for the foreign worker during the specific period that occurs once each year, and then – should the worker be selected in the lottery – submit the full H-1B petition. In the petition, the employer will be required to demonstrate that the foreign worker is being offered a position that is considered a “specialty occupation” meaning it generally requires at least a bachelor’s degree (or foreign equivalent) in a specific field of study and that this foreign worker has the required academic background for the role.

Key Point: USCIS has announced the FY 2024 H-1B cap registration period will open on March 1, 2023 and close on March 17, 2023. All cap registrations must be submitted online during this period. To do so, the employer must create an account with USCIS for this purpose (unless one was created in the past), provide some basic biographical and academic information about each foreign worker that the employer would like to register in the lottery, and pay the associated $10 H-1B registration fee per person. After the registration closes, USCIS will conduct the H-1B cap selection and notify sponsoring employers of selected foreign workers by March 31, 2023. USCIS has not yet announced the H-1B petition filing period, however, MSK is closely monitoring this date. We expect the filing period to run through the end of June as in past years.

MSK Analysis: Although H-1B cap registration will not open until March 1, 2023, please contact your MSK counsel as soon as possible to identify H-1B cap needs and assess H-1B eligibility. Certain foreign workers in particular should be considered for registration into the H-1B cap lottery, including F-1 students working pursuant to OPT, L-1B,  and TN nonimmigrant status holders as well as certain individuals holding dependent status.