Erickson in the News: H-1B visa lottery, despite changes, still leaves careers up to chance

March 31, 2018 Updated: April 1, 2018 6:00am

The H-1B visa lottery will begin again Monday, after a dizzying year of rhetoric, memos and executive orders from an administration determined to crack down on any foreign-worker program that it feels threatens American jobs.

At processing centers in California and Vermont, the dreams will arrive by the truckload, applications representing tens of thousands of people seeking a shot at working in the United States for three years, maybe more. Once there, they will be whittled down and thrown into a lottery, from which only 85,000 will be randomly chosen.

In that mountain of paperwork is a petition from the employer of 25-year-old Alejandro Castillejo from Spain. He, like many H-1B seekers, believes in the value of being in the U.S. and, after getting an education here, says he wants a few more years to live and work in the country.

He is a graduate of UC Berkeley and a creative technologist at Propelland, a San Francisco design studio. Visa rules let graduates with technical degrees like him stay in the country for a while; during that time, they have a few shots at the lottery.

But last year he wasn’t chosen.

If he doesn’t get picked this year, he will have one more chance before having to start his career over in Spain or elsewhere.

“It would be nice to know if I had six years here, so I could take control of my life plans and not leave it to luck,” he said on a recent afternoon, shortly after his company’s lawyers submitted his application. “Do I need to start thinking of going to another country?”

H-1B visas, which require the sponsorship of an employer, were difficult to obtain even before the Trump administration came into power.

Since 2004, when the number of available visas was reduced from 195,000 to 65,000, there has been a lottery to select applicants. Today, the limit of 85,000 visas (nonprofits like hospitals and colleges are exempt from that cap) makes the program fiercely competitive.

Congress is considering legislative changes, but those have yet to materialize. Yet people on the front lines — immigration lawyers, companies and applicants — say things are different. For most, filing for an H-1B this year required more paperwork and more time.

During the past year, immigration officials doubled their “requests for evidence,” documents demanding more proof of why the applicant deserves a visa, and also increased the number of denials, according to government data obtained by The Chronicle.

“From a bird’s-eye view, it feels like practitioners are treating H-1B applications as one of the more difficult cases to get approved, which is very different,” said Hiba Anver, a senior managing attorney at Erickson Immigration Group, a law firm that represents many large Bay Area tech companies.

Many of the requests for extra evidence focused on jobs with the lowest pay. So now some companies are trying to avoid extra scrutiny by proposing higher salaries.

Sometimes just a few dollars could make a difference. Zendesk, a San Francisco software company that applied for 15 H-1Bs this year, bumped one applicant’s salary up a “nominal” amount — $30 a year, said Kelly Gimson, a global mobility manager.

“Most of our folks are in San Francisco, and because the cost of living here is so high, our wages are already bumping them up to the Level 2 category anyways,” said Gimson.

But, she said, based on their experience with last year’s lottery, Zendesk and its lawyers are anticipating tougher reviews.

It is unclear how many people will enter the lottery this year. The number of H-1B applications decreased for the first time in years in 2017, a trend that, surprisingly, some advocates of work visas applaud.

In interviews, some executives said they plan to use the lottery less. In some cases, they are employing workers overseas instead — a move that decreases demand for foreign work visas, but hardly supports the administration’s push to get more Americans hired. Others said they are filing more applications now, before future changes make it even harder to hire the workers they seek.

The dip in applications — if it continues this year — would also be welcome news for people like Castillejo.

With fewer entrants in the lottery, he said, applicants like himself, with advanced technical degrees and skills that he believes contribute to the U.S. economy, will have better chances. He isn’t worried about any extra scrutiny, he said, because his application will stand up to the test.

If the scrutiny “makes other people not apply, then that’s lucky for me,” Castillejo said.