October 18, 2022

The United States Citizenship and Immigration Services (USCIS) approved the H-1B cap petitions for the fiscal year 2023. Accordingly, the change of status file automatically took effect on October 1, 2022, with the following conditions:

• Applicants must have been physically present in the United States during the entire time from the petition’s date received to the date of approval.
• The applicant must also have been present in the United States on October 1, 2022, for the change of status to go into effect.

Individuals with an approved petition who travel outside the United States must have a valid H-1B visa to return with H-1B status unless they are Canadian citizens. This stipulation can be problematic because many consulates have waiting periods of several months to schedule a visa appointment. The US Department of State’s website lists the available processing times for the consulates, so anyone wanting to file a visa application should visit the website to learn more about the process and schedule an interview.

Petitions Filed as Consular Notification

Approved H-1B cap-subject petitions filed as “consular notification” require further action to change the status of a beneficiary to H-1B. However, if beneficiaries are in the US, they must leave the country and visit a US consulate to activate the status with an approved consular petition. Afterward, the beneficiary must re-enter the United States using the H-1B visa they obtained. The status will apply when the individual re-enters the US.

Additional Steps

Here are some other steps employers may need to take for their H-1B cap beneficiaries:

• Employers might find it necessary to reverify the Form I-9 of some beneficiaries in Section 3 if the employee’s I-9 documentation expires.
• Beneficiaries may find their taxes have changed. For example, J-1 exchange visitors and F-1 students with valid status are sometimes exempt from FICA tax withholding. However, once they have H-1B status, they are not exempt and must withhold FICA taxes from their wages.
• Employers with pending H-1B cap petitions must monitor the status of employees whose work authorization will be ending before the petition is approved. Removing these individuals from the payroll or finding a means to help them keep their immigration status may prove necessary.

For companies that do choose to hire H-1B workers, it can be a challenging process. Furthermore, after completing the process and receiving the employee, you must fill out the employment eligibility verification form (Form I-9). This process often proves complicated and challenging, and mistakes will lead to penalties. Therefore, investing in an electronic I-9 management system may prove necessary. This tool can help keep employees’ documents organized, provide step-by-step guidance for completing the paperwork, and track important deadlines.

Increase your hiring and verification efficiency today with I-9 Compliance automation.

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