- Immigration Policy by Lottery?
- June 4, 2015
- Law Firm: Mintz Levin Cohn Ferris Glovsky Popeo P.C. - Boston Office
- The diversity visa green card lottery has been an important part of U.S. immigration law for the last 20 years. It allows 55,000 foreign nationals to immigrate each year and was implemented to fulfill the worthy goal of increasing the diversity of immigrants in the U.S. This policy is implemented each year after government analysis of the countries of origin of immigrants in other green card categories and then allocating the 55,000 green cards allowed by law amongst those underrepresented countries of origin.
There is another immigration lottery that occurs around this time of year for one of the most essential visa categories to U.S. business—the H-1B. Surprisingly, and unlike the diversity visa lottery, this lottery is not based on careful analysis and on no important policy. It is based only on an annual arbitrary quota. This yearly lottery is for the allocation of H-1B specialty occupation visas which happens during the first five business days of April. In 2014, U.S. Citizenship and Immigration Services (USCIS) received 172,500 H-1B petitions during the first week of April for the 85,000 H-1B quota numbers allowed by law. That’s over twice as many H-1B petitions as the quota allows. The same thing has now happened this year as recently announced by USCIS and summarized in our Immigration Alert: H-1B Cap Hit for Fiscal Year 2016.
USCIS will now use a computer based, random selection process to select the H-1Bs for adjudication. It’s too soon for USICS to provide the exact number of H-1B filings for this year, but due to the recovering economy and increased pace of hiring by U.S. employers, most expect the number of filings to be even higher—but for the same 85,000 quota allocation. So, this means another lottery selection process—a purely random lottery. Yes, that’s right-a critical component of U.S. immigration policy allowing U.S. employers to fill shortages in the most needed occupations in information technology, the sciences, engineering and other professions, is determined by chance! If an H-1B petition is selected out of the lottery, it is officially receipted by USCIS for adjudication. H-1B petitions not selected are returned.
Not surprisingly, employers who are new to the H-1B process are shocked when they learn this. These employers need to fill key shortages in their workforce, but cannot plan for their business needs due to the H-1B quota lottery. One of the business communities’ most common complaints about government policy is lack of predictability. I can’t think of anything more unpredictable for a business than a government policy that relies on a lottery to determine which foreign nationals will and will not be eligible for employment!