In a February 12 CNN opinion piece, the Director of U.S. Citizenship and Immigration Services (USCIS), L. Francis Cissna praises the administration’s new proposed rule governing the H-1B cap-subject petition selection process, commonly known as the H-1B visa lottery. For background, the H-1B is a temporary work visa allowing U.S. employers to hire foreign talent to fill critical gaps in the U.S. workforce and to gain access to highly sought-after skills of foreign professionals to complement the U.S. workforce. The “lottery” implemented when the number of H-1B petitions outstrips the number of available visas is unquestionably inefficient and ridiculous. But, while Director Cissna opines that the new rule will improve the odds that more U.S. advanced degree holders will have their petition accepted into the H-1B visa lottery, sadly in fact, the new system will not deliver on Cissna’s promise to ensure “the overall merit of the H-1B worker pool.”
Cissna’s central faulty assumption is that an individual with an advanced degree from a U.S. institution is somehow more “meritorious” than an individual with an advanced degree from a non-U.S. institution, or that workers with U.S. advanced degrees are “better and brighter” or more skilled and needed than those with degrees from outside the U.S. A physician with a foreign medical degree can’t play the “U.S. advanced degree lottery” even though he may have completed residency and fellowship training at Yale, because completion of graduate medical education doesn’t result in the grant of an “advanced degree” in the U.S. Does that mean that doctor isn’t among the best and brightest? A Ph.D. from the London School of Economics won’t get you a ticket for the “U.S. advanced degree lottery” either. Do we think that such an individual is inherently less qualified as an economist than someone with a master’s degree from a U.S. institution? Teachers working in inner city and rural school districts might not have U.S. advanced degrees, but they are teaching our children in parts of our country that U.S. born and educated teachers often don’t want to go. Are those skills not needed and “meritorious” enough to warrant an “edge” in the H-1B lottery? The administration’s plan to give an edge to those holding advanced degrees ignores the potential these other individuals have, and the intent of Congress to give them a fair chance at an H-1B visa.
The real problem with the lottery is not how it’s conducted – it’s that these petitions are awarded by lottery at all. And the only reason that happens is because Congress has set an artificially low ceiling for the number of H-1B petitions that may be accepted by the agency each year under the H-1B cap. That capped number in no way reflects the actual market demand for the skilled immigrant workers employers need to sustain and grow U.S. businesses. Imagine for a moment that you are that Ph.D. from the London School of Economics. You’ve interviewed for a job as Chief Financial Officer for a promising U.S. startup that intends to hire 500 U.S. workers in the next 12 months. The company is so impressed with your ability to drive the company’s revenues that they are willing to provide thousands of dollars in attorney’s fees and government filing fees, and undertake significant administrative compliance burdens beyond what would be required for a U.S. worker. Now, imagine that, even having done all of that, there was still a less than 50% chance that the employer would actually be able to hire you – in fact, less of a chance under this new rule that Director Cissna touts – because you’ll have to “win” a “lottery” in order for the company to make the hire that is clearly within its financial best interest. What would you do? Would you play the lottery? Or would you instead take your talents, skills and education and invest them in a country that actually welcomed them?
We cannot attract the best global talent by sending a signal that they’re only worth anything if they were educated in the U.S. And we don’t protect U.S. workers by shutting out the best foreign talent whose presence here could – as it has always done – drive innovation and ingenuity in ways that strengthen our economy, increase our shared prosperity, and create more jobs for Americans. We don’t need to re-configure the logistical administration of the outdated and ill-equipped H-1B system that we have. We need to re-imagine that system in a way that brings us up to speed with our current economic reality, and makes sense for our country’s future. I surely hope Congress does so in the near term, before we are shut out of the global marketplace of ideas.
***
A recent AILA recording offers more information for practitioners: Preparing for H-1B Season FY 2020: Filing Tips and Pitfalls to Avoid
