Erickson in the News: Changes to H-1B visa lottery create ‘stress’ for tech companies and employees

Vraj Parikh started coding when he was 8 years old. He’s been coding ever since, with his passion for computer programming bringing him to the United States, where he received a master’s in computer science from Indiana University. After a stint at a company in Boston, Parikh now works as a software engineer at PayPal.

“America has always been a land of opportunities for me,” Parikh says, sitting in his San Jose, California, apartment he shares with his wife.

But while Parikh appears to be living the American Dream, the native of Gujarat, India, is fighting to work in this country.

Parikh is applying for an H-1B visa, which tech companies like Facebook and Microsoft rely on heavily to fill technical positions like software engineers. The application window for the lottery just opened this week, and the competition is stiff.

For FY2018, more than 190,000 petitions were filed for 85,000 new H-1B visas, of which 20,000 slots were set aside for master’s candidates, according to U.S. Citizenship and Immigration Services.

Parikh has already been rejected from the H-1B lottery twice. If he gets a third rejection, he can still apply for an employment authorization under his green card application. But that process also takes time, money, and patience. Since his wife is a U.S. citizen, Parikh can still live in the U.S. if he doesn’t get a work visa or authorization, but he will no longer be able to work in the country.

But Parikh might have a leg up on the competition this year. Under a change to the H-1B visa lottery this year, the Trump administration is allowing master’s candidates to apply first for the general pool of 65,000 visas. Master’s graduates who aren’t selected in that lottery will then be given a second chance for one of 20,000 visas designated for advanced degree holders. The changes mean master’s degree candidates like Parikh should have a better chance of getting picked.

The H-1B lottery will likely see more changes.

Next year, the government will implement a new, electronic pre-registration process. Under that system, employers will fill out a brief online form for each employee they want to submit for the H-1B lottery. Once the H-1B candidates are selected, employers will then fill out a full petition for approved candidates – something they have to do now for every H-1B lottery candidate regardless of whether they are chosen. The change could save companies loads of billable hours and effort filling out full petitions for each employee.

However, some experts say the ease of filing under the pre-registration system could be a drawback for anxious foreign nationals waiting to be selected.

“The new rule actually makes it easier for companies to register more foreign national employees for purposes of participating in the cap, says Hiba Anver, a senior managing attorney at Erickson Immigration Group. “So there is potential to dilute the pool of applicants, thereby decreasing the likelihood that your case is actually going to be selected.”

A higher level of scrutiny

The tech community has been bracing for changes to the H-1B lottery ever since President Trump was elected, after assailing the system during his campaign. Critics of the system say lower-paid H-1B workers often replace American workers with cheaper counterparts from overseas. Howard University professor Ron Hira, an outspoken critic of the H-1B lottery, says the latest changes to the lottery are small compared to the overhaul President Trump suggested he would make during his campaign.

“In the big picture, these improvements are on the margin,” says Hira. “They are hardly the fundamental reform that Mr. Trump campaigned on and boldly declared he would accomplish in his first one-hundred days.”

U.S. companies have fought back against wholesale changes to the H-1B system. Last August, a number of prominent U.S. business leaders, including Apple’s Tim Cook, IBM’s Ginni Rometty, and J.P. Morgan’s Jamie Dimon wrote a letter to Homeland Security Secretary Kirstjen Nielsen expressing concern over immigration policy, specifically calling out H-1B workers and their U.S.-employed spouses.

Many U.S. tech companies are among the top 30 employers with the most H-1B approvals, including Microsoft, Amazon, and Google. However, Anver says those approvals come at a cost. Since the Trump administration, requests for evidence have spiked. She adds those requests can often be cumbersome, costing companies time and money.

“I think it’s important not to look at the approval rates in a vacuum, because the level of scrutiny that’s being applied to the visa petitions, regardless of the fact that they are ultimately approved, has gone up significantly in the past two years,” says Anver. “When it comes to employer-sponsored immigration, it’s a very high-stakes game.”

Susan Cohen, the founding chair of Mintz’s Immigration Practice, agrees. She points to one client, an economics consultant, whose H-1B extension was denied on the grounds that the employee was not working in a specialized occupation. Cohen says the employer eventually filed a suit against the ruling, and won, but the process to extend the visa was expensive and time-consuming — something she warns client companies about.

She says there seems to be a “concerted effort” from the U.S. Citizenship and Immigration Services (USCIS) to find one or more reasons to deny a work visa petition.

And while the U.S. tightens regulations around work-based visas, other countries, like Canada, are actively welcoming foreign nationals to work there. Parikh says many of his friends on H-1B visas are considering moving back to India or another country, rather than go through the time-consuming, wearying process of staying in the U.S.

As Parikh and his wife wait for his outcome, he says the uncertainty is stressful.

“Some stress is always there,” he says, adding that the prospect of leaving the country would mean rebuilding his life: “Whatever you got here for last 4 years, you have to leave everything and go back again and start from new.”