By Tiffany-Ashley Disney – The first step in being granted an H1-B Visa is obtaining a spot in the lottery of submitted applications. After surviving the lottery, the petition is reviewed by an immigration officer who makes the determination whether the worker is highly skilled and qualifies for the awarding of an H1-B Visa. There are some companies who are dependent on the approval of H-1B visas in order to supply their work-force. These type of companies employ 15% or more of their work force with workers who have obtained an H1-B visa. With the demand for H1-B visas by companies increasing rapidly—last year there were over 200,000 petitions to fill 65,000 visa slots—the system is vulnerable to potential abuse. The H1-B visa program is also surrounded by controversy, as the current system has been shaped by companies clearly abusing the system. For example, one company planned on having their current workers train the newly hired H1-B visa employees as replacements in clear violation of the H1-B program.
In 2008, an interim rule was announced that a company could only apply for one visa per potential employee because previously a company was filing multiple petitions for one employee under the pretense of different positions. Currently, there is no cap on the number of petitions a company can enter into the lottery. Nor is there a cap on the amount of petitions an employee can have submitted on behalf of him or her by different companies. So in theory, 10 different companies can enter 10 different petitions for the same individual, increasing that individual’s odds of surviving the lottery. Also, a company could submit multiple positions for different individuals, knowing that only a few of those petitions are going to survive the lottery.
With H1-B petitions increasing every year, perhaps it is time to eliminate the lottery and permit that determinations be made by immigration officers on a rolling basis as applications are received. USCIS could implement a stricter standard in determining what qualifies a highly skilled worker, definitively outlining what a highly-skilled worker is in order to prevent employers from hiring workers for positions that most Americans would be able to fill and satisfying the need for skilled labor which cannot be found domestically. While 200,000 applications were received in 2015, it is unknown how many of those actually qualified for the program as a highly-skilled worker.
The current April 1 deadline is to match the fiscal year of the government, not companies’ fiscal year. By accepting applications year-round, the needs of employers would be better met, after all, employers hire year-round and not just on April 1st when the H1-B visas are due or October 1st when the employees are actually permitted to begin work.
Another reason to eliminate the lottery is that it is a deterrence for high-tech entrepreneurs. Those entrepreneurs will choose to start their companies in other countries, which also has the effect of new jobs being created in other countries instead of America. The lottery makes it difficult for American-educated foreigners, such as MBA students, to obtain jobs in America. Although masters or higher degree holders are subject to a different cap-restriction, currently, doctorates who have earned their PhD in American receive no special exemptions other than the master’s degree exemption.
An alternative option in order to eliminate the pressing need for H1-B visas and the unfair lottery system for H1-B visas is to limit the amount of visa petitions that each company can submit. Others have suggested that the cap on H1-B petitions should be eliminated completely and the market should determine how many H1-B visas are awarded. Another limitation could be that individuals can only be petitioned for by one company. Perhaps if this limitation was in place it would reduce the amount of petitions that are submitted and increase an individual’s chance of surviving the lottery.
The current system also lacks any controls to see if employers are truly paying their employees the promised wage. In order for the visa to be granted, all the employer has to do is show an offer letter to the employee committing to pay the employee at least the prevailing wage, which is determined by a government agency. However, employers are not required to submit continuing proof of actually paying the employee the prevailing wage. The only way for the Department of Labor to discover breach of the Labor Condition Application is through filing by the employee, who may not even know of their rights with this regard. Employers should be required to submit monthly documents showing payment of the employees’ wages and employer who diverts from the promised wage, should have their privileges revoked. In order to meet the current demand of the program, changes should be made to prevent abuse.
