H-1B Cap Petitions Effective October 1, 2022

Petitions filed as Change of Status

Fiscal year 2023 H-1B cap petitions filed as “change of status” and approved by USCIS automatically took effect on October 1, 2022 if the beneficiary:

• was physically present in the U.S. for the entire period from the date the petition was received through the date the application was approved; and,
• was physically present in the U.S. on October 1, 2022 for the change of status to take effect.

With the exception of Canadian citizens, beneficiaries of approved H-1B cap petitions who depart the U.S. will need a valid H-1B visa to return to the U.S. in H-1B status. Many consulates have a wait period of several months to schedule a visa appointment. Actual visa processing times vary by consulate and can be found at the U.S. Department of State website. All intending visa applicants are advised to check the website of the consulate where they intend to apply for information on scheduling the interview and the visa application process.

Petitions filed for Consular Notification

Approved H-1B cap-subject petitions filed as “consular notification” will not automatically change the beneficiary’s status to H-1B without further action. To activate H-1B status for an approved consular notification petition, the beneficiary must depart the U.S. if not already abroad, obtain an H-1B visa at a U.S. consulate, and re-enter the U.S. utilizing the H-1B visa. H-1B status will take effect upon the date of re-entry into the U.S. Canadian citizens do not require a visa, but do need to activate a “consular notification” petition through a Port of Entry into the U.S.

Next Steps for Employers

• Form I-9 Reverification: Employers may need to update the employment eligibility under Section 3 of Form I-9for H-1B cap beneficiaries whose I-9 documents are expiring.
• Taxes for F-1 and J-1 Non-Immigrants: F-1 students and J-1 exchange visitors who are maintaining valid status may be exempt from FICA tax withholding. However, once F-1 or J-1 foreign nationals change to H-1B status, they are no longer exempt and withholdings will need to be adjusted.
• Pending H-1B Petitions: For H-1B cap petitions still pending, employers need to be aware of foreign nationals who have work authorization ending prior to H-1B approval, and must specifically monitor the employment of F-1 “cap gap” students, as these individuals may need to come off payroll and/or take additional steps to maintain their valid immigration status as of October 1, 2022.

For additional information, please contact your designated Gibney representative or email info@gibney.com.