I know I write a lot about the H-1B visa program. Probably too much. But this month’s missive must be written. In today’s globalized world, the United States continues to be one of the most sought-after destinations for skilled immigrants (even despite all the remote work opportunities that have presented themselves as a result of the Covid-19 pandemic). The H-1B visa program, designed for non-immigrant workers in specialty occupations, plays a crucial role in attracting and retaining talented professionals from around the world.
And yet the process to be able to participate in this program (especially if you’re not a “cap exempt” employer), as well as other “lottery based” nonimmigrant visa programs (e.g., the H-2B program), is a joke. The current cap for H-1B visas is only 65,000, with an additional 20,000 available for individuals with U.S. master’s degrees or higher.
I get calls literally every day asking how I can get this computer programmer or that software engineer an H-1B visa. Arguably worse than that, this time of year, I speak with my clients in hospitality (or other seasonal businesses with seasonal peakload labor needs), many of them now in their busiest time of the year, and they cannot fill critical roles (e.g., front and back of the house restaurant positions, landscapers, etc.) where some actually have to close one or two days a week when they should be open each and every day of the week!
Yet, as I’ve written before, unless you’re a “cap exempt” employer, participation in the H-1B visa program involves a lottery process (due to the program’s popularity), and this year’s lottery registration process involved so much abuse I cringe just thinking about it.
The government’s Fiscal Year 2024 visa registration and lottery process closed on March 17, 2023, and on April 28, 2023, USCIS released data indicating that there was a sixty one percent (61%) increase in the number of H-1B registrations submitted compared to the prior year. More concerning, however, was that the data revealed a one hundred forty-seven percent (147%) increase in the number of registrations that were for individuals who had multiple registrations.
According to the Wall Street Journal, approximately 96,000 individuals were responsible for more than 408,000 registrations. Although the regulations do allow different employers to file registrations (and petitions) for the same foreign national, the significant increase raises concern. Multiple registrations involving the same foreign national accounted for over fifty percent (50%) of all the lottery registrations. That is concerning and suggests that unscrupulous employers are trying to unfairly (and perhaps unlawfully) game the system.
How does this play out in real terms? Several ways. Here are a couple. First, it potentially results in some H-1B visas from not being used because some individuals may be counted more than once if more than one employer had their registration selected for the same individual. This affects other companies who filed registrations for foreign nationals who were not selected.
In addition, many foreign students (who are in the United States on F-1 visas and working for U.S. employers pursuant to Optional Practical Training, or OPT) may be required to depart the United States if they are at the end of their OPT availability and are not selected in the H-1B lottery.
Something needs to change. According to USCIS, in FY23, there were 483,927 H-1B registrations. This number increased in FY24 to more than 780,000 total registrations. Of course, some of this increase is legitimate, but clearly not all of it. And even if you just look at the legitimate increase in demand, and accept as true all the anecdotal evidence from clients like mine or people you may even know in your everyday lives complaining about the difficulties in attracting and retaining talent into the workforce, if the H-1B lottery registration process is not changed, than it’s U.S. employers, and our economy, that will suffer.
With unemployment rates at historic lows, and demand for labor so high, the status quo will no doubt negatively impact economic growth. While the Department of Homeland Security (“DHS”) has indicated that it will refer for prosecution those that are unlawfully gaming the system, the issues are far more systemic, and Congress must get its act together to finally implement meaningful immigration reform.
 Some employers are eligible to file what are called “cap-exempt” H-1B nonimmigrant petitions if they are an institution of higher education, a non-profit entity which is “related to” or “affiliated with” an institution of higher education, a non-profit research organization, or a government research organization.