As 2022 comes to an end, the majority of FY2023 H-1B cap petitions have now received a final decision. While some cases remain pending with USCIS or awaiting RFE response from the petitioner, the large majority of cases have already been adjudicated. As such, ILBSG can now report the overall results, emerging trends, and explain what we expect to see going forward as we begin to prepare for the next H-1B cap season.

The data in this article is compiled from a sample size of 150 FY2023 H-1B cap petitions, prepared by the same managing attorney[1] at our firm to eliminate any variables in strategy or approach. These 150 cases were filed on behalf of 25 different companies, varying in size, geographic location, and industry.  All cases were filed between April 1 – June 30, 2022.

Overall Results:

Overwhelmingly, the FY2023 H-1B cap season was a favorable one. While overall selection rates were lower due to the high number of registrations received by USCIS, the cases selected and ultimately filed with USCIS received overwhelmingly positive results.

For FY 2023, USCIS received 483,927 registrations. Of the registrations, USCIS selected 127,600 in a single selection round, which is about 26%. By comparison, USCIS received 308,613 registrations for FY 2022, selecting 131,980 cases over three selection rounds, which amounted to 42%.  This means that in 2022, the rate of selection significantly decreased, while demand increased by nearly 57%.

From the 150 cases we analyzed as a representative sample size, 107 cases received a straight approval as of December 1. This means there was no RFE or further inquiry from USCIS and the case was approved directly. 43 cases received an RFE, from which 28 have been responded to. So far, 24 have been approved after RFE response, with 4 still pending. The remaining 15 cases which received an RFE are still gathering documents to respond. As such, currently, 71% of cases have received straight approval, with another 16% approved after RFE. This means 87% of the cases filed have been approved so far (131 out of 150). The remaining 13% remains pending, with no denials received to date. Of the cases we have received a decision for, we are currently enjoying a 100% approval rating.

Trends So Far:

Throughout that three-month filing period and the months that have followed, some definite trends have emerged. Since these trends will be instructive for forecasting what we can expect going forward, it’s worth a closer look.

For starters, the earlier a case was filed, the higher the likelihood of approval. Out of 150 cases, 12 were filed in May. 10 were straight approved, with the other two approved after RFE response. This means 100% of the cases filed early were approved and nearly all of them were straight approved.  Only 12% received an RFE. While the large majority of H-1B petitioners end up filing in June, the last month of the filing period, there are clear advantages to filing early in terms of approval ratings.

Of the 138 cases filed in June, 97 were straight approved so far. Interestingly, 95 were in regular processing, meaning there was no clear advantage of filing in premium processing. While premium processing certainly expedites the decision, it does not necessarily impact what the decision will be. Our data clearly shows that cases filed in regular processing were just as likely to be approved. Of the 138 cases filed in June, 41 received an RFE. This comes out to 30%, meaning those who filed in June were more than twice as likely to receive an RFE than those who took advantage of early filing in May. There are still 19 cases filed in June that remain pending, which comes out to 14%. In looking at the differences between May filings vs. June filings, it becomes clear that not only did filing in June increase your likelihood of an RFE, it also then increased the likelihood you would not receive a decision before the 10/1 start date.

Last year, the majority of RFEs we received were for maintenance of status, but this year we experienced a noticeable shift to qualifications-focused RFEs. From the cases that received RFEs, the following trends emerged:

• 25 out of 43 requested further evidence of the beneficiary’s qualifications only. This amounts to 58% of the RFEs on this one issue.
• Only 4 out of 43 raised the issue of maintenance of status, representing 9%.
• Only 6 out of 43 requested further evidence regarding the Petitioner (tax returns, mortgage/lease, business license, etc.), amounting to 13%.
• 9 out of 43 of the RFEs raised multiple issues (meaning 2-3 of the issues), for a total of 20%. The remaining 80% of RFEs were issued on a single issue.
• 0 cases received an RFE related to the work itinerary or project documentation.

So far, USCIS has been very favorable following RFE response.  To date, all cases we have received a decision for following RFE response have been approved. While we may start to see some denials at the end of the H-1B cap season as USCIS runs out of available visa numbers, this area has been very favorable up until this point, which is encouraging. While there are certainly ways you can avoid getting an RFE, your likelihood of eventual approval is not impacted if you do receive one.

There has been no observable advantage or disadvantage of premium processing in terms of increasing the likelihood of RFE. While sometimes pressuring USCIS for a quick decision can result in an RFE to buy the adjudicating officer more time, we did not see that this year. Most cases that were upgraded to premium after the initial filing received straight approval. In fact, only 2 cases that were upgraded to premium processing after filing received an RFE. Both were approved after the response.

In general, we have not experienced any unnecessary or unwarranted RFEs. In other words, cases filed with complete documentation received straight approvals and we only received RFEs for cases for which USCIS could fairly request further documentation, such as an educational evaluation. There were no frivolous RFEs issued to date, which is indicative of more reasonable adjudicatory practices at USCIS than what we have experienced in the past.

While USCIS has not issued any RFEs requesting client letters or other project-related documentation, a trend has emerged of this documentation being requested at the consular stage. While USCIS can no longer request this documentation during the adjudication of the I-129 petition following the ITServe lawsuit, the consulates can issue a 221(g) requesting this evidence at the visa stamping stage. In that regard, obtaining an H-1B approval notice is now easier than obtaining an H-1B visa, meaning there is an advantage for those who filed a change of status request in the U.S. over those who applied for consular processing and will be required to attend stamping. This is something to keep in mind for future H-1B caps.

Best Practices & Strategies for FY 2024

Looking forward to the FY 2024 H-1B cap, there are some best practices and strategies we recommend at ILBSG. For starters, if selected, it is best to file the petition as early as possible, with complete, thorough documentation. This increases the odds of straight approval, but also allows you more time to respond to an RFE and get the decision by October 1, in the event an RFE is issued.

Since the overwhelming majority of RFEs focused on the beneficiary’s qualifications, we recommend obtaining an education and/or experience evaluation at the time of filing. If the beneficiary has a foreign degree or an unrelated degree with relevant work experience, obtaining the academic or education + experience evaluation ahead of time makes a significant difference. At the very least, we advise getting a quote from an evaluator, so you will know what type of evaluation might be possible before you file the H-1B petition. Otherwise, you could file the petition and later find out an evaluation will not be possible, meaning the case is likely to get denied. It will save you time and money to address this upfront instead. This year, H-1B petitioners who opted to get the evaluation ahead of time per our recommendation received straight approvals, so this is a well-proven strategy for success.

Next, we anticipate that demand will again be high for H-1B visas. With registrations being at an all-time high, it is tempting for candidates to file through multiple employers. However, this can really impact the petitioning company and potentially tarnish the company’s reputation with USCIS. USCIS has long held that if two companies file for the same candidate, for a similar role, that alone is enough to find the companies acted in concert to increase the odds of selection, even if the companies are not legally related.

To avoid this, we recommend having H-1B registration candidates sign and date a statement confirming they are not filing through any other company. Having this signed statement on file will protect the company in the event the candidate files through multiple companies and USCIS raises an inquiry. As long as the petitioning company can show they were not aware of the multiple registrations and acted in good faith on the word of the beneficiary, the company will be protected.

Finally, because we have seen an increase in complex 221(g) notices at the consular stage, we recommend that beneficiaries remain in the U.S. until the H-1B petition is adjudicated into a decision. If you travel while the H-1B is pending, the change of status portion of the request will be abandoned and then denied. In this scenario, even if the beneficiary travels back before the case is decided, the approval will be issued without I-94. The beneficiary will then have to travel back out for visa stamping, which could result in consular delays and/or a 221(g), asking for end-client documentation. This is easy to avoid by refraining from travel during the pendency of the case.

Conclusion

As the FY 2024 H-1B Cap season approaches, we recommend planning early. Carefully screen applicants to ensure adequate qualifications and finalize your candidates early, to avoid last-minute registration. If selected, plan to file the H-1B petition early with the strongest documentation possible, to increase the odds of straight approval well before the 10/1 start date. We recommend working with an experienced immigration attorney, to ensure the smoothest H-1B cap season possible. At ILBSG, we have vast experience preparing and filing H-1B petitions. Our experience allows us to examine trends and strategize to create the best possible approach going forward, maximizing our results.

If you have questions about the upcoming H-1B cap or need assistance in strategizing to get the best possible outcome, please reach out to us. We’re in this together.

[1] This data was taken from Julia Funke’s case statistics for the FY 2023 H-1B cap season. Julia Funke is a managing attorney at ILBSG who has been working in employment-based immigration for the last 10 years.