H-1B: A Lottery You Pay to Enter Only AFTER You Have Won

By David North, April 28, 2017

Is there a lottery, outside of Washington, where you only pay to enter after you know you have won?

I doubt it.

But there is a specialized (and obscure) one in Washington that only the big guys can use, thanks to the Bush II, Obama, and now (to some extent) the Trump administrations.

This is the roll of the dice (a computer-aided lottery system) that allocates H-1B slots to employers in cases in which — as has happened in recent years — there are more applications for these positions than the 85,000 that Congress permits to be granted annually.

H-1B workers usually have college degrees, and are often employed in the IT business. Employers want these workers because they are docile, unlikely to change jobs, and because they cost much less than U.S. workers.

It is widely suspected that one class of H-1B employers, the tech outsourcing companies, most of which are headquartered in India, send in far more applications than they plan to use because they know the lottery will give them only a bit less than half the petitions they submit.

This year there were 199,000 applications for the 85,000 slots. This overage, though lower than the previous year, gives the industry a regular public relations coup — "look," they say, "there is a real shortage of needed workers!"

One very easy way to reduce the artificially inflated number of applications — and it would not even involve issuing new regulations — would be to end the perverse USCIS policy of giving back the substantial filing fees for the lottery to those who do not win. As it is now, would-be H-1B employers get their money back if they do not win the lottery, meaning that the fees to enter the lottery are, in fact, only paid by the winners.

The president said earlier this month that "right now H-1B visas are awarded in a totally random lottery — and that's wrong." The irony is that he could have changed that earlier this year, by using an auction so that only the highest paid were granted these visas, for example, but he did not do so.

The fees per H1-B range from $1,720 to $6,460, depending on the size of the employer's workforce and the extent to which the employer is "dependent" on H-1Bs.

Microsoft and Infosys get their money back if their applications do not produce an approval, a minor matter to them, but if an individual alien seeking naturalization fails his tests for the second time, his $640 is kept by USCIS. (The ill-starred alien in that case is highly unlikely to be wealthy.)

Will the Trump administration, one that campaigned on its devotion to the little guy, change any of those arrangements? We will see.