More on the ‘Jobs’ at Companies that Lost Out in the H-1B Lottery

By David North on April 20, 2022

According to a recent — and accurate — posting by my colleague Robert Law, many of the H-1B slots sought in the annual lottery do not exist. Much if not all of the gap between the slots sought, and the 85,000 a year available, is no gap at all. Many employers simply over-state their “needs” in the hopes that, say, the three hundred slots they say they need will produce the 100 or so slots that they can use.

And since they only pay $10 to file the initial application with the Labor Department, and the application requires almost no work, why not file lots of them and give the industry some phony data on “labor shortages”?

But it is more complicated than that. Though there does not seem to be any major organized effort to hire Americans to fill those “jobs”, as Law notes, there are other approaches for employers who do not, in fact, get all the H-1Bs they seek from the lottery. The immigration system is just full of opportunities for employers — even those losing in the lottery — to hire the foreign workers they say they need. Some of the methods are legal, others are not.

Legal Alternatives. If an employer wants to hire people with computer skills, he might well think about H-4s. They, like most H-1Bs, are from a part of the world favored by H-1B employers; they are largely from southern and Hindu parts of India and are usually college graduates. They are already in this country. There are no numerical ceilings for H-4s. No government applications are involved for many of them.

They are usually married to H-1Bs. However, 90 percent of them are women, which may be a challenge to the more bigoted of the employers.

An employer who prefers male workers can use what is, in effect, a government-permitted, two-part indenture system to get the H-1B-type skills he says he needs. Using the Optional Practical Training program for alien graduates of U.S. colleges, he can hire an OPT worker without any federal red tape and keep the worker semi-indentured by filing an H-1B application for him; once the H-1B approval has come through, if it does, then the same employer can keep the worker in line by promising a green card application in the future.

With the OPT program, there are no numerical ceilings and no pesky labor standards dealing with wages and, happily for the employer, none of the payroll taxes that the rest of the employers pay.

Then there are some opportunities for employers to hire through the L visa for international corporations’ skilled workers and managers and through J visas in the various exchange programs. Remember, the people who write the immigration laws are often influenced by employers and their lobbies, people who are quite capable of inventing all sorts of ways that employers get the foreign workers they want at wages they want to pay.

Illegal Alternatives. An employer could simply take a chance, and hire the foreign worker who has the needed skills but lacks documentation. The chances are excellent, unfortunately, that a Biden-shackled ICE will not come around asking questions.

Another option is to find an H-1B middleman who has beaten the system by arranging for the placement of H-1Bs with make-believe employers and who has won the lottery for them, but who now has workers but no jobs. Several times a year stories pop up about middlemen caught under these circumstances; routinely the law-breakers have sub-continent names.

Ethan Baron of the Bay Area News Group, for example, wrote on April 13 about a man and a woman who had arranged for the employment of 54 individuals in this manner; both were charged with seven counts of filing fraudulent visa applications. I did not see any indication, and this is usually the case, that the ultimate employers of these ill-gotten workers were indicted.

The Preferable Alternative. Or, if worse comes to worst, the employer could (gasp!) hire American citizens to do the work.

Shed no tears for the would-be H-1B employers who lose the lottery.