Home » The H-1B Visa Lottery And America's Bad Immigration Law – Forbes

The H-1B Visa Lottery And America's Bad Immigration Law – Forbes

by Arifa Rana

The Peace Bridge in Buffalo, New York. (Photo by Robert Nickelsberg/Getty Images)
U.S. immigration law has become so inadequate that U.S. Citizenship and Immigration Services (USCIS) will reject up to 82% of the H-1B registrations for high-skilled foreign nationals submitted in the most recent H-1B lottery, according to the latest government data. In contrast, there is no numerical limit on high-skilled temporary visas in Canada under the Global Skills Strategy, and many high-skill temporary visa applicants are approved within two weeks. Despite this, many members of Congress have ignored the global competition for talent or, more remarkably, introduced measures to make it even more difficult for companies to employ foreign-born scientists and engineers in America.
H-1B visas are essential because they typically represent the only practical way for high-skilled foreign nationals, including international students, to work long-term in the United States. The process of obtaining permanent residence in the U.S. is flawed, with many individuals from India waiting decades to receive green cards.
Immigration policy plays a significant role in highly skilled individuals deciding where to study and build their careers. “The number of international students from India studying at Canadian colleges and universities increased 182% between 2016 and 2019 while at the same time, the enrollment of Indian students in master’s level science and engineering programs at U.S. universities fell almost 40%,” according to a recent National Foundation for American Policy (NFAP) analysis. “Indian student enrollment at Canadian colleges and universities increased nearly 300% between the 2015-16 and 2019-20 academic years.” The annual number of Indians immigrating to Canada has more than doubled since 2016.
FY 2022 and FY 2023 H-1B Cap Registration: USCIS uses a lottery in any year when companies file more H-1B applications (or registrations) than the annual limit of 85,000 (65,000 plus a 20,000-exemption for advanced degree holders from U.S. universities). In 2021, USCIS received more than 300,000 H-1B registrations for FY 2022. More than 70% were rejected because of the low annual limit.
On April 15, 2022, USCIS reported that for FY 2023, it received 483,927 H-1B registrations. USCIS will reject nearly 400,000, or 82%, of the registrations for being beyond the 85,000 annual limit for H-1B petitions. Even if more than one registration were submitted for some individuals, USCIS will still reject hundreds of thousands of high-skilled professionals. Technically, USCIS selected more than 85,000 registrations for FY 2023 to ensure a sufficient number of petitions are approved. (See here.)
It is widely acknowledged that Russia losing a large number of information technology (IT) professionals—shrinking the availability of tech talent—is a disaster and a “drain brain” for the Russian economy. Why then would U.S. policymakers think it is good for the United States to reject so many applicants and prevent hundreds of thousands of highly skilled scientists and engineers from joining the U.S. labor force?
The facts show the H-1B visa category is vital for retaining and bringing talent to the United States. Critics have attempted to devalue H-1B professionals as people and diminish their talent by arguing companies hire H-1B visa holders because they are “cheap labor” or that U.S. law gives an incentive to hire foreign-born individuals. As the data below show, the reality is far different and says more about those making the arguments.
H-1B Median Annual Salaries Exceed $100,000: USCIS data show the median annual salary for H-1B visa holders was $101,000 in FY 2020 and $108,000 in FY 2021. In computer-related occupations, the median salary for H-1B visa holders was $111,000 in FY 2021. The average salary for H-1B professionals in computer-related occupations in FY 2021 was $118,000, according to USCIS.
In addition to not citing such statistics, critics do not compare H-1B professionals to U.S. workers based on the level of experience or acknowledge the significant costs employers incur to file H-1B petitions. A company may spend up to $31,000 to file an initial H-1B petition (for three years) and an extension for an additional three years, based on an NFAP analysis of government fees and attorney costs.
H-1B Professionals Are Highly Educated: Nearly 70% of H-1B visa holders approved for initial employment in FY 2021 earned a master’s degree or higher, according to USCIS. When employers visit college campuses, here is what they find: At U.S. universities, foreign nationals account for 74% of the full-time graduate students in electrical engineering, 72% in computer and information sciences, and 50% to 70% of full-time graduate students in statistics, civil engineering, materials sciences and pharmaceutical sciences. It would be impossible to sustain graduate-level programs in key fields at many U.S. universities without international students.
Many Job Openings and Low Unemployment in Computer Occupations: There is little evidence that H-1B visa holders prevent Americans with the right mix of skills from getting a job. In March 2022, the U.S. unemployment rate in computer and mathematical occupations was an extremely low 1.3%. An NFAP analysis of EMSI data found “more than 1.5 million job vacancy postings in computer occupations (as of December 6, 2021) . . . close to 30 times more available jobs in computer occupations than H-1Bs who fill such jobs annually.”
Research Finds Members of Congress and Critics Likely Costing U.S. Jobs by Restricting the Entry of H-1B Professionals: The lump of labor fallacy is the mistaken belief that there exists a fixed number of jobs or amount of labor, which would mean new people entering the labor market would cause someone else to lose a job. That is not how a market economy works.
A study by economists Giovanni Peri, Kevin Shih, Chad Sparber and Angie Marek Zeitlin found that denying the entry of H-1B visa holders due to the annual limits has harmed job growth for U.S.-born professionals. “The number of jobs for U.S.-born workers in computer-related industries would have grown at least 55% faster between 2005-2006 and 2009-2010, if not for the denial of so many applications in the recent H-1B visa lotteries,” concluded the economists.
“Cities whose employers faced large numbers of denials in the H-1B visa lotteries experienced considerably less job creation and wage growth for American-born computer workers in the two years that followed,” the economists found. “Denying H-1B visas didn’t help the economies of America’s cities or their U.S.-born workers. Instead, it cost their tech sectors hundreds of thousands of jobs and billions in missed wages.”
Similarly, research by Britta Glennon, an assistant professor at the Wharton School of Business at the University of Pennsylvania, found restrictions on H-1B visas push jobs out of the United States, concluding, “[A]ny policies that are motivated by concerns about the loss of native jobs should consider that policies aimed at reducing immigration have the unintended consequence of encouraging firms to offshore jobs abroad.”
Congress is unlikely to address the law of supply and demand for H-1B visas and may even decide to drive more talent and employer resources out of the country by enacting new restrictions. A sliver of hope remains on employment-based green cards. A House-Senate conference committee could decide to enhance national security and the U.S. economy by permitting foreign nationals with Ph.D.s in science and technology fields or those with advanced degrees in critical industries to immigrate to the United States.

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