USCIS announced this week that the 2023 allocation for H-1Bs has been reached. It is anticipated that the lottery registration process will begin anew in March 2023. Employers and employees should plan ahead of that time, to assess eligibility and timing for next year’s quota. Those selected in the March lottery will likely be permitted to file for H-1B petitions between April 1st and June 30th, for a start date of October 1, 2023.
In the meantime, alternatives to the H-1B program are somewhat limited. Certain employers are exempt from the H-1B cap, and are able to petition any time of the year. Cap exempt employers include institutions of higher education and non-profit research organizations; organizations affiliated with institutions of higher education and/or non-profit research organizations; and in some cases, employers who place employees at such employers (e.g. for-profit medical practice that places a physician or medical professional at a university-related hospital).
Another alternative is the O-1 Alien for Extraordinary Ability petition, which is for persons who have risen to the top of their profession. The government employs a merits-based analysis for these petitions, involving review of publications, media attention, awards, contributions to the field, compensation, and other similar factors. The bar is reasonably high, but the shoe will fit for some professionals.
Additional schooling will be an option for some, such as pursuing an advanced degree at a U.S. institution. Persons who receive degrees in STEM fields may be eligible for three years of subsequent optional practical training.
Canadian and Mexican professionals can consider the TN professional work authorization. Australian professionals may be eligible for the E-3 visa. Chile and Singapore professionals may be eligible for the H-1B1 visa. These statuses have their own particular requirements and processes, but basically, they are professional work authorizations.
Married persons may in some limited cases be able to acquire work authorization based on spousal statuses. For example, J-2 holders are eligible for employment authorization documents.
Persons in a position to invest in a startup of a business may qualify for an E-2 visa, depending on their home country.
This list of options is not exhaustive. It highlights to some extent the continuing need for H-1B reform, so that U.S. businesses can employ noncitizen persons of talent when needed, rather than based on an annual lottery-driven quota.
For reference, here is the USCIS announcement:
USCIS has received a sufficient number of petitions needed to reach the congressionally mandated 65,000 H-1B visa regular cap and the 20,000 H-1B visa U.S. advanced degree exemption, known as the master’s cap, for fiscal year (FY) 2023.
We have completed sending non-selection notifications to registrants’ online accounts. The status for registrations properly submitted for the FY 2023 H-1B numerical allocations, but that were not selected, will now show:
- Not Selected: Not selected – not eligible to file an H-1B cap petition based on this registration.
We will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed for current H-1B workers who have been counted previously against the cap, and who still retain their cap number, are exempt from the FY 2023 H-1B cap. We will continue to accept and process petitions filed to:
- Extend the amount of time a current H-1B worker may remain in the United States;
- Change the terms of employment for current H-1B workers;
- Allow current H-1B workers to change employers; and
- Allow current H-1B workers to work concurrently in additional H-1B positions.
U.S. businesses use the H-1B program to employ foreign workers in specialty occupations. We encourage H-1B petitioners to subscribe to the H-1B cap season email updates located on the H-1B Cap Season page.