Is This a Joke? This Year’s H-1B Lottery Defies Logic & Requires Congressional Reform.

May 03, 2023
Chandni Shah

U.S. employers have benefitted from the H-1B visa program since 1990, allowing them to recruit and hire temporary foreign talent in “specialty occupations” which require at least bachelor’s degree or higher. This year’s H-1B lottery, however, reached the highest number of registrations to date (780,884), more than half of which were submitted by multiple employers on behalf of the same person on account of rampant fraud made easier with the new online registration system. The H-1B visa program is no longer a reliable recruiting strategy for foreign talent based on the incredibly low selection rate this year (15%) and requires Congressional reform and USCIS intervention.

H-1B Visa Lottery Process

Since 2020, the process for registering for a new H-1B visa has changed to a streamlined electronic system allowing U.S. employers to register H-1B applicants for a small fee of only $10 and by providing minimal information. The previous process required submitting dense applications containing extensive evidence and paying the full government filing fees in the thousands of dollars, as well as full legal fees if hiring an attorney for assistance.  Now, an employer submits a short and inexpensive online registration in March and then USCIS conducts a lottery to select registrations for available visa numbers. Those selected are then invited to submit a complete H-1B petition with the necessary evidence and filing fees. If approved, the individual can start working for the U.S. employer on or after October 1 of that year.

H-1B Visa Availability and Recent Trends

Notwithstanding a few exceptions, individuals wishing to obtain an H-1B visa are subject to a Congressional cap of 85,000 visas (65,000 for individuals with an equivalent of a U.S. bachelor’s degree and 20,000 for individuals with a U.S. master’s degree or higher).  In recent years, however, the number of H-1B registrations has far exceeded the number of visas available. For reference, from fiscal years 2014 to 2020, USCIS never received more than 240,000 petitions. However, since enabling the simplified electronic registration process in 2020, the number of registrations has significantly increased every fiscal year:

  • FY 2021:  275,000
  • FY 2022:  308,613
  • FY 2023:  483,921
  • FY 2024:  780,884

For fiscal year 2024, only 110,791 beneficiaries were selected, or less than 15% of the total number of applicants registered. Most troubling, however, is that the 780,884 registrations submitted included 408,891 registrations submitted by multiple companies on behalf of the same person, meaning more than half of those who registered!

It is still unclear whether USCIS will conduct another lottery later this year, after June 30, 2023, to distribute any unused H-1B visas.

Reliability of the H-1B Visa Program

The new electronic registration process for the H-1B cap lottery was intended to save employers money and time. However, as recent trends show, the low percentage of applicants selected has left employers frustrated and hopeless that they can no longer depend on the H-1B lottery as a form of recruiting talented foreign employment. The following factors have contributed to the increased number of registrations this year:

  • Low unemployment rate in the U.S.
  • Increase in the number of foreign students graduating from U.S. universities and seeking U.S. employment
  • Employers re-registering individuals that have not been selected in the H-1B lottery in previous years
  • Minimal barriers to the new H-1B lottery registration process
  • Alleged fraud associated with the lack of barriers to enter the H-1B lottery, allowing companies to submit multiple registrations for the same applicant

USCIS is aware of these fraud concerns and has sophisticated methods and procedures in place to combat abuse of the system. Existing rules already prohibit companies from colluding and submitting multiple registrations on behalf of the same person in order to give them an advantage and USCIS can access and cross reference massive amounts of data to find even the slightest connections between two employers colluding to help a candidate.  Those that are identified as having participated in such a fraudulent scheme may face selection revocations and denials, fines, and even being barred from participating in the H-1B program entirely.

Even though USCIS is actively working on identifying and revoking fraudulent registrations, the H-1B visa program is still nevertheless a frustrating and inefficient way of bringing professional workers to the U.S. Employers are at the behest of a random lottery that is conducted typically only once per year with a 15% selection rate. Congress must reform the H-1B visa program in order to help U.S. employers attract the best foreign talent. Such action should include increasing the number of H-1B visas available every year (it used to be 195,000 in 2001-2003), creating alternative visa options for STEM graduates from U.S. universities, and decreasing green card backlogs by eliminating per country allocations, among others.

We understand that there may be many questions and concerns related to the H-1B visa and this year’s lottery. Do not hesitate to contact our office at (312) 427-6163 or schedule a consultation online to discuss.

The material contained in this alert does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.

© 2023 Minsky, McCormick & Hallagan, P.C. All rights reserved. Information may not be reproduced, displayed, modified, or distributed without the express prior written permission of Minsky, McCormick & Hallagan, P.C.

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