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Online System for High-Skilled Visa Lottery Gets First Big Test

Feb. 19, 2020, 4:16 PM

A new online system for the H-1B high-skilled visa lottery will get its first test Feb. 24, the day companies hoping to employ these workers can create accounts for registration.

The day marks the first of several changes to the H-1B lottery process that the U.S. Citizenship and Immigration Services hopes will make it easier and more affordable for employers. From March 1 to March 20, companies seeking to hire H-1B workers can register online for prospective visa beneficiaries by providing basic information and a $10 registration fee.

The ability to register online ahead of the lottery for fiscal year 2021 has drawn concern from immigration attorneys, who fear that the more streamlined registration process could give an additional advantage to IT staffing companies that submit the majority of petitions.

H-1B visas are reserved for skilled guestworkers in specialty occupations. There are 65,000 visas available each year, with an additional 20,000 allocated for workers with advanced degrees from U.S. colleges and universities. Demand for H-1B visas, which are particularly popular in the tech industry, has grown so much that the USCIS holds a lottery to determine which petitions it would process. In 2019, employers submitted 201,011 petitions for a total of 85,000 visas available for fiscal year 2020.

Attorneys and the general public are concerned about “a flood” of registrations for individuals who aren’t qualified or from employers trying to game the system, said Sharvari Dalal-Dheini, director of government relations for the American Immigration Lawyers Association. “They’re concerned there isn’t enough fraud vetting happening.”

The USCIS will be monitoring the registration system for potential fraud and abuse, such as instances where employers are submitting many registrations, but once selected only filing petitions for a significantly lower number of workers, which could reflect gaming the system to unfairly improve their odds of being selected, an agency spokesman said.

The agency also is requiring registrants to attest that they intend to file an H-1B petition for the beneficiary in the position for which the registration is filed. “This confirmation is intended to ensure that each registration is connected with a bona fide job offer and, if selected, will result in the filing of an H-1B petition,” he said.

Critics of the H-1B program say it allows companies to hire cheaper foreign labor to replace U.S. workers. “I don’t think this has anything to do with trying to eliminate abuse,” said Ron Hira, a Howard University professor who has done research on the H-1B program. “If that was the aim, I don’t think it will be very effective.

“Cutting red tape can be a good thing, but it isn’t a substitute for the kind of fundamental reform the H-1B program so desperately requires,” said Hira.

High Traffic Anticipated

Employers also are concerned that the website won’t be ready to handle the traffic when the system goes live.

In January 2019, the Labor Department’s electronic filing system for the H-2B seasonal foreign worker program, iCERT, went down early Jan. 1, leaving employers unable to start the process for obtaining foreign labor for the spring season. The crash happened when employers requested 97,800 H-2B workers for only 33,000 available visas, the DOL said at the time.

The website was back up a week later.

Participants in a recent public engagement call with the USCIS asked what the backup plan was in the event of a site crash. Agency officials said it will revert to the current paper system, according to the protocol laid out in a January 2019 regulation.

The USCIS also can suspend the registration system if it’s inoperable for any reason, the agency spokesman added in a follow-up email. The agency also has the option to keep the registration period open beyond March 20, or re-open the registration period, depending on the circumstances.

To contact the reporter on this story: Genevieve Douglas in Washington at gdouglas@bloomberglaw.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Karl Hardy at khardy@bloomberglaw.com

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