U.S. Firms, Workers Try to Beat H-1B Visa Lottery System

Wall Street Journal

By Miriam Jordan

June 2, 2015

U.S. Firms, Workers Try to Beat H-1B Visa Lottery System 

Companies eager to hire foreign talent, mostly in the tech sector, and workers hoping for jobs in the U.S. have found ways to game a government lottery used to distribute a limited number of visas each year.

Immigration lawyers involved in the process say they have helped companies file multiple H-1B skilled-worker visa applications for the same person. Some workers, meanwhile, are accepting offers from multiple employers, each of whom files a petition on their behalf, the lawyers say.

Such practices, which aren’t illegal, likely have occurred in the past without public notice but appear to be proliferating as the economy rebounds and competition for the coveted visas intensifies, immigration lawyers say. Smaller businesses say such moves disadvantage them because they can’t afford to match them. Lawyers charge $2,000 to $4,000 to prepare each petition.

It isn’t known how many of the record 233,000 applications filed in April for the 85,000 H-1B slots this year were duplicates. Some attorneys who prepare applications believe it could be thousands.

The government permits related entities, such as a parent company and its affiliates, to file H-1B petitions for the same foreign worker if each can show a legitimate business need for the individual to fill a position.

“Some companies are being creative, within the boundaries of ambiguous regulations, to maximize their chances of winning the lottery,” said Stephen Yale-Loehr, an immigration scholar at Cornell Law School.

“The practice is growing and will continue to grow,” said Greg McCall, a Seattle-based immigration attorney. Mr. McCall said a company with four subsidiaries requested that he file four petitions this year for the same worker. “So I did,” he said. “It is a best practice.” One petition was selected, he said.

A spokeswoman for U.S. Citizenship and Immigration Services, which oversees the visa program, said the agency doesn’t “specifically track the number of cases” where related entities documented a legitimate business need to file a petition for the same individual.

This year was the third in a row that H-1B visas, the number of which is capped by Congress, were oversubscribed and decided by lottery. Demand had slipped during the recession.

The nonimmigrant visa is valid for three years, and can be extended to six—or even longer, if the employer decides to sponsor the worker for a green card.

Carl Shusterman, an attorney who formerly worked for the Immigration and Naturalization Service, says “playing the system disadvantages companies spending time and money trying to get a specific foreign graduate of a U.S. university.”

H-1B holders account for about 6% of the 50,000-strong workforce at Intel Corp., which typically seeks visas for graduates of U.S. universities who studied science, technology, engineering or math. The tech giant, which has four subsidiaries, said it doesn’t file more than one petition per person.

Critics including Daniel Costa, an immigration expert at the Economic Policy Institute, say that of particular concern are Indian outsourcing companies that provide workers for entry-level positions in the U.S., such as tech support at retailers and banks. Such companies are among the top procurers of H-1B visas, according to U.S. government data.

“To the best of our knowledge, none of our leading member companies indulge in such a practice of using subsidiaries or group companies to file multiple applications for same individual,” said Gagan Sabharwal, a director of Nasscom, a trade association that represents Indian tech companies.

Whether H-1B recipients displace qualified American job candidates is hotly debated, and changes to the visa cap would require legislative action. Some Democrats and Republicans say more visas would fuel economic growth; others in both parties oppose any changes unless protections for U.S. workers are bolstered.

“We should consider ways that will improve how visas are distributed,” said Chuck Grassley (R., Iowa), chairman of the Senate Judiciary Committee. In particular, he said, any changes should benefit small U.S. businesses and exclude foreign workers who do “jobs that Americans can and want to do.”

“It is no surprise that with the system the way it is today, a lottery based on chance rather than a rational system addressing need, companies are using all legal means necessary to fill their business needs,” said Elizabeth Hyman, executive vice president of advocacy for CompTIA, an IT-industry association. “Companies are struggling to fill their open high-skilled positions and the H-1B lottery system isn’t working.”

On the other side, an individual foreign worker can accept job offers from several companies, which would each—unknown to the others—file an H-1B petition on his behalf. If selected, the worker’s visa allows him to jump companies, even before starting work with the one that successfully petitioned for him. The new employer must fill out a new petition but it isn’t subject to the cap, because the worker has already been counted in the tally.

Mr. Sabharwal deemed it “quite possible, conceivable and likely” that individuals would seek to appear on multiple petitions. “I guess when you create artificial shortage of a commodity by putting artificial caps/quotas, then these workarounds are bound to emerge,” he said.

“It’s similar to telling five men or women that you are going to marry them when you know you can only be with one,” said Sheela Murthy, an immigration attorney in Owings Mills, Md. She says that she advises workers “it’s not completely ethical and above board.”

Asked about the practice, the Citizenship and Immigration Services spokeswoman said, “there is no prohibition for multiple unrelated petitioners filing on behalf of the same individual beneficiary within the same fiscal year.”

Mr. Shusterman, the former immigration official, calls it “a huge loophole that should be closed.”

Small companies say that the tide of multiple petitions undermines their chances of getting the workers they want. Kent Ivanoff, whose iVinci Health in Boise, Idaho, designs software for the health-care sector, said he first heard about duplicate submissions from an Indian software developer for whom he has tried unsuccessfully to secure a visa in two lotteries.

“She told me she knows people who have four or five [related] companies sponsoring their application,” said Mr. Ivanoff, who employs 25 people. “It’s tough to compete with that.”

Mr. Ivanoff says he has hired several Americans who work remotely but is struggling to fill vacancies for experienced software, systems and data engineers, among others. Without them, he says, his business’s growth will be stymied.

For more information, go to:  www.beverlyhillsimmigrationlaw.com