Feds Resort to H-1B Lottery, Tech Firms Stew

The U.S. Citizenship and Immigration Services (USCIS) has received more applications for 2009 H-1B visas than it can issue, exceeding the congressional limit on the tech-friendly program just days after applications were first accepted.

The agency has received enough petitions for H-1B visas to meet the 65,000 limit set by Congress and also has exceeded the limit on the 20,000 special exemptions it can issue for workers with advanced degrees. Applications for fiscal year 2009 will no longer be accepted.

The USCIS did not specify how quickly the cap was reached. Previously, the agency said it filled last year’s allotment within a day, and it reached the quota for fiscal year 2007 within a month.

Supplementing Domestic Labor

The agency will conduct a lottery for all applications received in the six-day period from April 1 through April 7. Those not chosen will be returned along with application fees; new rules prohibiting multiple applications for each worker will be enforced. Workers selected in the lottery will be eligible to start working with their sponsor companies on Oct. 1.

The advanced degree exemption visas will be drawn first, and then applicants not selected for those visas will be placed in the larger pool for the standard 65,000 visas.

Technology companies have been lobbying heavily for Congress to lift the cap on the visas, which are set aside for skilled workers and meant to help companies — primarily those in the technology industry — supplement domestic labor.

Clamoring for More

The current cap is clearly outdated, Mark Koestler, an immigration business attorney with Naftalis & Frankel in New York, told the E-Commerce Times.

It isn’t a surprise that the visa limit was reached so quickly, “given the fact that the H-1B numbers haven’t lasted throughout the year in many years,” Koestler added. “Despite the uncertainty of our economy, it is far more robust than it was when Congress set the 65,000 cap.”

There have been changes to the cap over the years. In 2001, nearly 200,000 of the visas were issued to help fuel the dot-com boom.

While “the fairest way to deal with the demand of U.S. employers is for Congress to increase the cap on H-1B numbers to a more realistic figure,” Koestler said, he conceded that the lottery is a fair way to deal with the shortage.

The lottery approach is “madness,” said Robert Hoffman, vice president for government affairs at Oracle and cochairman of Compete America, a lobbying group pushing for H-1B reform.

“U.S. employers deserve better than a random lottery to determine if they can hire the highly educated candidates they need,” he said. “Congress has failed to address the problem as U.S. universities graduate highly educated individuals who leave to work in competitor nations.”

At least two pieces of legislation are pending on Capitol Hill to boost the supply of the visas. One bill would double the limit while another would restore the previous high-water mark of 195,000. Earlier efforts to provide more visas — at the behest of tech heavyweights such as Microsoft Chairman Bill Gates — have been stalled after being rolled into larger immigration reform packages.

Four-to-One Ratio

Tech companies have moved to set up operations outside the U.S. in order to avail themselves of more foreign-born labor. Last summer, for instance, Microsoft said it would open a development center in Canada, where immigration rules and visiting worker regulations are more favorable.

While critics of expanding the H-1B program say the foreign workers take jobs that could be filled by Americans, Gates told Congress last month that H-1B hires actually create U.S. jobs, with Microsoft hiring an average of four additional people to support each H-1B engineer it can bring aboard.

The technology industry needs to continue to lobby for the cap to be lifted, said Tim Jemal, executive director of the Technology Leadership Political Action Committee, a group formed to represent tech interests in Washington.

“It’s a global race to innovate, and in competition you want to field the best team possible,” Jemal told the E-Commerce Times. “It doesn’t make sense that the United States is not welcoming the best and brightest minds in the world to work and live here. Every time we deny a high-skilled visa to someone who wants to come to the U.S., countries like China and India put out the welcome mat.”