H-1B Selection Process a Travesty - Time to Go "Back to the Future"

by Alan Lee, Esq.

USCIS announced the results of the FY-2024 H-1B initial registration period results on April 28, 2023, and they revealed a lot as to why there were so many disappointments this March. What a broken system! USCIS received 780,884 H-1B registrations of which over half were from beneficiaries with multiple submissions – 350,103 of people with one application and 408,891 of people with more than one. 110,791 selections were made, less than last year’s 127,600 because of anticipated higher H-1B1 use (which is set off against the H-1B numbers) and a higher anticipated petition filing rate by selected registrants. So the selection rate was 14.19% overall and if taking into account only the 758,994 eligible registrations (those that were not disqualified, deleted, or had payment problems), 14.6%.

It is apparent that there is much fraud in the selection process with individuals and companies putting up multiple applications. Under the law, H-1B registration for an individual is generally only one (no multiple applications by the same organization) and should only be made by an organization with a bona fide need for the individual. The exception is where another organization has its own bona fide need for the individual. The staggering number of beneficiaries with multiple eligible registrations, 408,891, belies this premise. It is clear that many individuals and organizations are colluding in the multiple applications and effectively squeezing out bona fide applicants.

What is the solution – we propose that it is to go “Back to the Future” and once again have organizations file full petitions instead of merely paying nominal amounts of money (currently $10 per registration) for the privilege of filing the specialized occupation petitions. Individuals and their organizations have no “skin in the game” to not try to game the system given the low threshold to play and lack of enforcement against violators. My partner, Arthur Lee’s article two years ago, “Recommendations to Improve H-1B Lottery System”, Immigration Daily 4/14/22, pointed out the astonishing rise of 53.5% in the number of H-1B registrants in FY 2022, 308,613, as opposed to the 201,011 H-1B petitions selected in FY 2020, the year before USCIS switched to the lottery registration system, and advocated a rise in the registration fee from $10 to $100 as a partial solution. USCIS has now proposed a fee increase to $215. However, this writer does not believe that even such a large fee increase will have any effect as the staggering numbers here indicate that many organizations and individuals will simply consider the amount a cost of doing business, and it is well known that USCIS fee increases do not discourage applications for immigration benefits. A prime example is USCIS’ premium processing fee which has risen from program inception of $1000 to today’s $2500 (for most cases) and only seen highly increased usage of the service. The real deterrent to this type of fraud is to have interested organizations put in full petitions with documented need for the individuals. One of the reasons given by USCIS for implementing this failed registration system was the voluminous number of papers that would have to be returned for each unselected petition – however, the amount of paperwork is now halved as the agency no longer requires duplicate copies of H-1B petitions.

From FY 2018- 2020 just prior to the implementation of the registration system in FY-2021, the number of received petitions in the three years hovered in the consistent range of 190,000 – 200,000. With the registration system in place in FY 2021, registrations zoomed up to 274,237, the next year 308,613, the next 483,927, and this March 780,884. At this rate without change, the number will exceed 1 million by next year because of fraud without regard to the economic conditions of this country. Many H-1B pundits had thought that the numbers would drop this year because of problems in the tech sector resulting in tens of thousands of layoffs, but were sadly mistaken.

So it would seem that the only sensible solution is to go “Back to the Future”. In its announcement of the overall numbers on April 28, USCIS acknowledged in a paragraph, “Measures to Combat Fraud in the Registration Process”, that the large number of multiple eligible registrations raised serious concerns of some gaining unfair advantage, but only reiterated the penalties which many have already ignored and will likely keep ignoring until there is some real “skin in the game”.

About The Author

Alan Lee, Esq. is an exclusive practitioner of immigration law based in New York City with an AV preeminent rating in the Martindale-Hubbell Law Directory for 20+ years, registered in the Bar Register of Preeminent Lawyers, on the New York Super Lawyers list (2011-12, 2013-14, 2014-2015, 2015-2022), and recognized as a New York Area Top Rated Lawyer. He has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Epoch Times, Pakistan Calling, Muhasba and OCS; testified as an expert on immigration in civil court proceedings; and is a regular contributor to Martindale-Hubbell's Ask-a-Lawyer program. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004; his 2004 case in the Second Circuit Court of Appeals, Firstland International v. INS, successfully challenged Legacy INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof, although its central holding that the government had to notify approved immigrant petition holders of the revocation prior to the their departure to the U. S. for the petition to be able to be revoked was short-lived as it was specifically targeted in the Intelligence Reform Act of 2004 (which in response changed the language of the revocation statute itself). Yet Firstland lives on as precedent that the government must comply with nondiscretionary duties established in law, and such failure is reviewable in federal courts. His 2015 case, Matter of Leacheng International, Inc., with the Administrative Appeals Office of USCIS (AAO) set nation-wide standards on the definition of "doing business" for multinational executives and managers to gain immigration benefits.

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