The “Visa Roulette” Begins Tomorrow

On the eve of April 1st, the day when many H-1B visa-seeking employees and companies file their work visa petitions, the Wall Street Journal (paid subcription required) reports on the problems which many U.S. businesses face in hiring foreign skilled workers.

As many of our readers know, the H-1B visas enable U.S. companies to hire skilled foreign workers for jobs which are difficult to fill with domestic workers.  Last year, the U.S. Citizen and Immigration Services (USCIS) received  124,000 applications for H-1B visas, nearly double the yearly cap of 65,000 set by Congress.  Because the number of applications exceeded the available number of visas, the USCIS used a random lottery to determine which applications will be approved.

Because the filing window opens on April 1st, for a starting date as early as October 1st, the applicants have only one shot at applying for, and getting a visa.  If the visa petition is received by the government a week late, or if the paperwork is not properly prepared, the company and its potential employee are out of luck because they do not have a chance to amend and re-file.

Many companies and applicants who are participating in the H-1B application season are hoping that the slowdown in the economy will drive down the applicants’ numbers this April.  However, as the Wall Street Journal reports, many softening sectors in the economy’s foreign worker needs are offset by  very strong demand in other areas, such as technology.  Also, just because the filing window is so small, many employers will try to make their hiring decisions early, and apply for their foreign nationals’ work visas in April.

What this year’s H-1B filing season will bring remains a mystery, but anecdotal evidence from our colleagues at other law firms suggests that demand for the H-1B visa is still very strong  and almost certainly there will be a lottery to distribute the excess H-1B visa applications.