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New H-1B visa rule promises fairer play, but higher stakes

A U.S. H-1B lottery rule change aims to reduce fraud by allowing only one lottery entry per candidate, potentially putting some beneficiaries in a strong position.

The U.S. has implemented an H-1B rule change that could create some competition for visa candidates and even cause bidding wars. The change eliminates the possibility that a visa candidate can be entered into the H-1B lottery multiple times.

Previously, multiple employers could submit registrations for the same beneficiary, thereby improving the overall odds for that individual. However, with the new rule, each beneficiary can now only be submitted once, giving all candidates an equal chance in the H-1B lottery.

"Whether you are a huge tech company or a midsize or small company, everybody has the same chance to get their candidate into the lottery and be chosen," said Kelly Cobb, a partner and immigration attorney at Jackson Walker in Houston.

Because the H-1B lottery has allowed multiple registrations of the same individual, the number of registrations neared 800,000 last year. U.S. Citizenship and Immigration Services (USCIS) suspected fraud, with multiple entries being submitted by the same companies through their subsidiaries. The rule change is expected to reduce the registration volume. The U.S. can only issue 65,000 new H-1B visas a year, plus 20,000 for foreign nationals graduating with a master's degree or higher from a U.S. school.

Foreign nationals being courted by more than one company might be in an especially good position. The tech industry has been lobbying for changes to the lottery to curb the excessive registrations.

"The winner is the foreign national," said Rosanna Berardi, managing partner at Berardi Immigration Law in Buffalo, N.Y.

Employers would need to compete for the foreign national beneficiary in the same way that they might need to compete for U.S. workers.
Priscilla MuhlenkampImmigration attorney and partner, Fragomen

With the new rule, "there is going to be a fight for this type of talent amongst employers," Berardi said. It has the potential to touch off a bidding war for a candidate with multiple sponsors, she said.

On the same footing

Priscilla Muhlenkamp, an immigration attorney and partner at Fragomen, said the USCIS change "really puts foreign national beneficiaries on the same footing as any other employee or job candidate, which is a good thing."

"Employers would need to compete for the foreign national beneficiary in the same way that they might need to compete for U.S. workers," Muhlenkamp said. That would happen post-lottery for candidates with multiple offers.

This type of competition only applies to beneficiaries with multiple employer sponsors, a small subset, and there is a debate about how much competition will emerge. Employers can't easily adjust salaries or make material changes to the H-1B petition without filing an amendment to USCIS. Some employers might be uninterested in a bidding war and willing to risk losing a candidate.

Masha Sutherlin, director of global corporate legal and mobility at Deel, a global immigration services company, said employers might feel this change is "a little bit worse because there's no commitment necessarily from the candidate."

For employers, "this is a weaker position," Sutherlin said, but it's only going to affect top-tier candidates with multiple offers.

H-1B beneficiaries in a strong position can seek benefits from their prospective employers such as a faster green card sponsorship, housing stipend, family leave or fertility benefits, Sutherlin said.

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

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