In the latest Weekly Wright Report:

• H-1B Visa Lottery Fraud Deprives America of Thousands of High-Skilled Professional Workers Needed by American Businesses

H-1B Visa Lottery Fraud Deprives America of Thousands of High-Skilled Professional Workers Needed by American Businesses

By Jan Pederson

What many immigration attorneys have long suspected has reached the world stage with an article in The Wall Street Journal announcing that fraud in the H-1B lottery registration system has deprived many employers not selected in the lottery of global high-skilled talented workers needed for America to compete in the global economy.  It is reported that many, largely small, high tech companies have colluded with visa brokers to recruit H-1B workers to register in the lottery with multiple employers, thereby increasing the chances an H-1B worker will be selected.

The lottery system is conducted in March each year to distribute 85,000 H-1B visa slots; 20,000 of which are reserved for those with U.S. masters degrees.  In March 2023, 781,000 H-1B registrations were entered into the lottery for the 85,000 visa slots, thus there was a 10% chance of a registrant winning. The scope of the problem is outlined in a chart published by USCIS:

The lottery entrance process was radically changed, and the fraud escalated during the Trump administration in 2020. Prior to 2020, an H-1B prospective employer had to prepare and file an entire H-1B petition, with an approved underlying Labor Condition Application (LCA) to enter the H-1B lottery,  This process entailed paying legal fees and thousands of dollars in filing fees as the price of lottery entry. The system rolled out in 2020 was promoted to reduce the paperwork and costs to employers in entering the lottery. Beginning in March 2020, all an employer had to do was complete an online registration naming the prospective employee and pay $10.00.  Thus with the barriers to entry all but eliminated, the current system allowing brokers to sell lottery tickets, as it were, flourished.  While the USCIS regulations prohibit an employer from registering the same prospective H-1B worker in the lottery more than once, the H-1B worker hopefuls can be registered in the lottery by an unlimited number of employers willing to file registrations, thus, increasing the chance of winning the H-1B lottery.

USCIS also announced that it was scrutinizing the registrations of employers with duplicate entries and referred them to law enforcement for investigation.  A warning was also issued to H-1B winners that their lottery win may be canceled if the H-1B worker was found to be complicit in a fraudulent registration. H-1B Employers and H-1B lottery winners may be visited by a law enforcement official during the announced investigations. Persons contacted should not speak to law enforcement officials without a lawyer present and should ask the law enforcement personnel to contact their lawyer to arrange a mutually convenient time to meet with a lawyer present.

Anecdotal evidence suggests that both employers and prospective H-1B workers were duped. One lottery winner advised counsel that he was notified that he won the lottery from an employer whom he did not know entered him in the lottery. While these applications are hard to monitor, let alone police, all employer registrants are required to certify they have an actual job for the registered prospective H-1B employee.

Congress needs to amend H-1B legislation to let the market forces determine the number of H-1B visas, thus eliminating the aura of abject desperation of visa seekers and employers succumbing to unsavory brokers. The annual numerical limitation on H-1B visas is unique to the H visa category. Other employment based nonimmigrant visa petitions, such as treaty trader/investor visas, I journalist visas, J exchange visas, L intracompany transferees, O visas for those of extraordinary ability, P visas for talented athletes, Q culturally unique workers (“Disney”) and R visas for religious workers. Why the limit on H visas? The solution is to eliminate the lottery and let the market forces determine the number of H-1B visas. There are rumblings that lawsuits to undo the 2024 lottery are in the works and we will keep you updated.

Our H-1B Experts are happy to consult with parties impacted by this news and to consult with H-1B workers who did not win the lottery this year on alternative visas until next year. Please contact Corey Goettsch at legalassistant@wcslaw.com to set up a consultation.