Immigration lottery limits US employers

Today, employers will submit tens of thousands of H-1B visa applications to two government processing centers in Vermont and California.  It is an annual ritual for U.S. employers who must obtain permission from the federal government to hire high-skilled foreign workers.  The majority of foreign workers have advanced degrees, and many have graduated from our universities. 

But in the latest example of our broken immigration system, agency officials will stop accepting applications after five days, and will then run a random computer-generated lottery and reject half of the applications. The reason? Demand for H-1B visas is increasing, but the baseline annual limit remains at the same level that Congress set in 1990. 

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The economic implication of rejecting so many high-skilled workers is troubling.  Earlier this month, the independent Congressional Budget Office found that a modest increase in H-1B visas and green cards for high-skilled workers would reduce budget deficits by $110 billion over the next 10 years.  Just as importantly, each additional H-1B worker results in four new jobs, which means the H-1B ceiling costs our economy over 100,000 jobs a year. Rejecting H-1B applications impedes our economic recovery and deprives U.S. employers of the talent they need to grow their companies and compete in a global economy.

The H-1B visa is the main entry path for high-skilled foreign professionals, who fuel our economy with their innovation and expertise.   Over 20,000 different employers sponsor H-1B workers each year, in professions ranging from veterinarians to software engineers.  Sixty percent of the finalists of the prestigious Intel Science Talent Search competition had parents who entered the U.S. on H-1B visas. 

As someone who has been involved in the H-1B process for 15 years, I predict that demand for H-1B visas will be the highest in history, and that U.S. employers will file over twice as many H-1B applications as are permitted under law.  If I am right, an employer’s chance of securing government permission to sponsor an H-1B worker will be less than fifty percent. 

Why is demand so high? The law simply has not kept up with the times. Prior to 1990, there was no limit on the visa category.  In the quarter century since Congress imposed a limit, the U.S. Gross Domestic Product has grown over fifty percent. Industries and technologies that did not exist then now employ hundreds of thousands of workers. Our country is bigger, our workforce needs are more specialized, and our employers must compete against companies located all over the world. 

Furthermore, the number of foreign students in engineering and math programs at our universities continues to increase, and almost all of those students will require H-1B visas if they want to remain in the U.S.  We must improve STEM education in our public schools so that more Americans pursue science, engineering and technology jobs. Increasing the number of H-1B visas will help accomplish that goal.  The government collects billions of dollars in fees from H-1B sponsors that go towards U.S. worker education and training, including in STEM fields.  Over the years, those fees have paid for over 63,000 scholarships for U.S. students.

What will happen to the tens of thousands of foreign professionals who do not win the lottery and whose applications are rejected in the weeks ahead?  In today’s economy, American companies cannot afford to lose that talent.  It is not just the time and money spent recruiting the workers and sponsoring them for H-1B visas, it is the opportunity cost of seeing hundreds, if not thousands, of professionals go work for your competitors. And so employers will, whenever possible, find roles for those employees in offices overseas, in countries where the immigration laws have adapted to the global economy. The high-skilled workers will contribute to the growth of the economy, but it won’t be our economy. 

As Congress continues its debate about how to make changes to the outdated immigration system, it must help U.S. companies compete by raising the H-1B cap and increasing the number green cards available to high skilled workers.   Otherwise, the success of U.S. companies  will continue to depend on a random lottery run by a government agency. 

Melmed served as chief counsel of the U.S. Citizenship and Immigration Services from 2007 through 2009.  He is a partner at Berry Appleman & Leiden LLP, a global immigration law firm.