H-1B visas are for highly skilled temporary workers. The foreign worker is required to have (1) a college, or university, DEGREE, and (2) a job offer in a POSITION which REQUIRES such a DEGREE. The potential American employer must pay FILING FEES of several thousands of dollars (depending on the size of the company) for each foreign worker it wishes to employ.

The number of H-1B visas issued every year is limited to 85,000 (with some exceptions). In the last four years, the number of APPLICATIONS (officially: “petitions”) filed every year by American employers was more than 3 times this CAP: 235,000.

How is this OVERFLOW of applications handled? The U.S. Citizenship and Immigration Services (CIS) begins to accept the applications on the first day of April of every year, and continues accepting them for 4 – 6 days. Then CIS takes all applications in their still UNOPENED envelopes and conducts a LOTTERY. The winning envelopes are kept, the others are returned to the American employers. CIS then opens the winning envelopes, cashes the employer’s FILING FEE, examines the applications and grants H-1B WORKING VISAS for the properly filed applications and eligible FOREIGN WORKERS. Statistically, this process is fair, unbiased, quick, and provides solutions to the employment needs of ONE OUT OF THREE American employers.

What is WRONG with this process? The WRONG is that in REAL LIFE it is biased in favor of large companies, and especially in favor of large RECRUITERS whose business is to “PLACE” foreign workers with U.S. companies.

This BIAS stems from the fact that these large companies’ need for GENERIC workers. If such companies project that during the coming year they would need 800 “computer engineers with B.S. degrees”, they do not care who are the engineers that are chosen. As a matter of fact, based on statistics, they may even file 2,400 applications and get their 800 engineers. It does not even cost them much, because the employers’ checks are cashed only AFTER the lottery and only from the “winning” envelopes. (The preparation costs are probably covered by the foreign workers as REGISTRATION fees.)

The result is that smaller American employers, who need only one or two foreign workers, and who need a specific worker with specific SKILLS and EXPERIENCE, have very little chance in filling their needs – last year only one chance in 3 or 4 (next year – maybe 1 in 5).

This situation finally prompted a number of small employers to sue the USCIS in Federal Court in Oregon, challenging the LEGALITY of the LOTTERY. The Government filed a Motion to Dismiss the lawsuit, but the FEDERAL JUDGE denied it. The case itself – the LEGALITY of the Lottery – should be decided in the next few months.

TRUTHFULLY, it is very difficult to design a fair, unbiased, fast system for distribution of H-1B WORKING VISAS as long as the “CAP” of 85,000 visas a year is in place. This CAP simply ignores the REAL LIFE needs of American companies. My proposal to correct the BIAS in the existing lottery is to continue with a LOTTERY, but do it in several ROUNDS: Round 1 – between employers who filed a single application; Round 2 – between employers who filed 2 applications; and so on until all 85,000 visas are distributed. This should not be too difficult, and should not take too much time, with all the COMPUTERS available to the USCIS.

Meet Our Stuff
Copyright © 2000-2015 by Popkin Shamir & Golan Law Firm. All Rights Reserved.