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Tech groups seek changes to H-1B lottery

A surge in H-1B lottery registrations, some legitimate and some potentially fraudulent, is prompting efforts to reform the system. Any new rules will require public input.

President Biden may soon propose changes to the H-1B lottery to stem the flood of registrations overwhelming the system, and tech groups are trying to influence what those changes might look like.

Earlier this year, the government received almost 800,000 visa registrations -- a 60% increase compared with last year. More than half were duplicate names. U.S. Citizenship and Immigration Services (USCIS) suspected fraud and warned of investigations.

The government created the H-1B electronic lottery registration system in 2019. Before that, employers had to submit a visa petition to enter a candidate, which involved paying attorneys to complete an application and submitting fees in advance.

Now participation costs employers an initial $10 per applicant, and completed visa petitions are required only from those selected. The cheaper registration costs encouraged more employers to apply, resulting in duplicate entries. If a candidate has job offers from multiple companies that sponsor H-1B visas, each company can register the same person. But the ease of this registration may have also opened the door to fraud.

Tech immigration groups and the American Immigration Lawyers Association (AILA) have proposed a different lottery plan to the U.S. Department of Homeland Security, which oversees the USCIS.

As it works today, multiple employers can submit a visa registration for the same individual, and all those registrations are entered into the lottery. The proposed plan suggests "the lottery should be run based on the individual beneficiary rather than each registration," said Shev Dalal-Dheini, director of government relations at the AILA.

"This means that a beneficiary who has 10 employers file a registration on [his] behalf will have the same chance of winning the visa lottery as someone who has one employer file a registration on [his] behalf," Dalal-Dheini said.

Under the current system, if the sponsoring employer's registration is drawn in the lottery, the H-1B candidate can work for that employer. But under the proposed system, winning candidates with multiple sponsors can choose the employer they want to work for, and the selected employer will file the H-1B petition.

Some tech groups behind the proposed plan include the Compete America coalition, TechNet and the Information Technology Industry Council. Collectively, these groups represent a broad selection of tech companies, including Google, Microsoft, Meta, IBM, Amazon and others.

The White House has been working on an H-1B modernization plan for over a year to address administrative issues in the program. Lottery reform is expected to be part of that.

Skepticism over the plan

Former U.S. Rep. Bruce Morrison (D-Conn.), who chaired the U.S. House Immigration Subcommittee that wrote the 1990 Immigration Act and created the modern H-1B program, believes tougher enforcement is needed and is skeptical of proposals coming from the tech industry.

"Either each beneficiary should be entered in the lottery, or each company," Morrison said. "Advantaging employees registered multiple times is not fair or legal. The problem is collusive multiple registrations."

The lottery should be run based on the individual beneficiary rather than each registration.
Shev Dalal-DheiniDirector of government relations, American Immigration Lawyers Association

Morrison said the problem "should be attacked directly by scrutiny" of "any beneficiary registered more than once or by screening for the abuse in the registration process itself by increased requirements and scrutiny for registering companies."

"The system has been gamed through multiple registrations," Morrison said. "The gamers should not get to design a new game."

If the U.S. decides to reform the lottery system, it must seek public comment on any new rules and finalize them by early next year if they are to be ready for next year's H-1B lottery.

Despite this year's high number of electronic H-1B lottery registrations, the USCIS said in late July that it had to select additional H-1B registrations to meet its annual visa cap of 85,000. That meant the initial lottery drawing didn't translate into enough employers completing visa petitions on behalf of a lottery winner.

Andrew Greenfield, managing partner at the Washington office of Fragomen, Del Rey, Bernsen & Loewy, believes the USCIS response to the high volume of registrations may have eliminated illegitimately duplicative entries and chilled interest from some employers.

The government "sent some big warning balloons out there -- that if you're up to no good, we're going to come after you," he said.

Patrick Thibodeau covers HCM and ERP technologies for TechTarget Editorial. He's worked for more than two decades as an enterprise IT reporter.

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