As we approach Groundhog Day, U.S. employers are once again confronted with the very real prospect of having to deal with the H-1B “lottery.”

The very existence of the H-1B cap has been labeled a form of “national suicide” by former New York Mayor Michael Bloomberg; "absurd" by an Economics Editor of Bloomberg Businessweek; and “evidence of a dysfunctional market” by a senior fellow at the Center for Global Development in Washington.

In the coming weeks, U.S. employers will expend in-house resources and engage counsel to prepare and file H-1B petitions during the first week of April in the hope that its petitions will be among the 85,000 selected by U.S. Citizenship and Immigration Services ("USCIS"). To be sure, without imminent new legislation, there will be a lottery to determine which petitions are considered for adjudication. For the last fiscal year, approximately 150,000 petitions were filed during the first week of April. Given the pent–up demand since then, it will not be at all surprising if more than 200,000 petitions are filed – leaving employers with less than a 1 in 2 chance of having their petition selected and, if selected, then having to wait for an October 1, 2014 effective date of employment.

The natural consequence of being married to an arbitrary H-1B cap? Depriving U.S. employers of hiring what they deem to be the best qualified and, in most cases, sending those not selected in the random lottery (many of whom are educated at U.S. colleges and universities) back to their home countries — in essence giving a “gift to our rival economies.

It is indeed unfortunate that Congress cannot take its collective head out of the sand and realize that the current political stalemate with respect to immigration reform is working to the extreme detriment of the U.S. employer. It is about time that our lawmakers recognize that the tried and true principle of “supply and demand” should override the divisive political process.

Is it too much to hope that we are not living the same day all over again on April 1, 2015?


Post Authored By: Anthony F. Siliato, Esq. and Scott R. Malyk, Esq. of Meyner and Landis LLP