New H-1B Rule Strives to Foil System Gamers

Complaints that some companies are taking advantage of the H-1B visa system are nothing new. But, while most grievances have been about underpaying foreigners or intentionally displacing U.S. workers, the most recent complaint is about businesses that try to game the system.

U.S. Citizenship and Immigration Services found that 500 duplicate applications were filed in 2007, officials told the Associated Press on March 19, which is evidence of businesses trying to increase the odds for their chosen candidates. The agency has announced plans to deny or revoke all multiple petitions filed by an employer for the same worker this year, and will not refund the $320 filling fee submitted with duplicative petitions.

The new interim rule is to ensure that all applicants have an equal chance to employ an H-1B worker by ensuring a “fair and orderly” distribution of available visas.

However, it appears that the rule already has its limitations.

“This rule does not preclude related employers (such as a parent company and its subsidiary) from filing petitions on behalf of the same alien for different positions, based on a legitimate business need,” the USCIS explained in the press release.

The agency says that this move is part of a larger effort to reform the immigration process, something which has been criticized by several lawmakers.

The rule announced March 20 also stipulates that if the number of H-1B petitions received in the first five business days of accepting applications exceeds the yearly allowance, USCIS will again be allowed to apply a random selection to them.

If 2007 was any indication, officials expect to be more overwhelmed than ever this year with the volume of H-1B applications received when the submitting period opens April 1.

More than 120,000 applications came in on the first day last year, nearly double the annual limit of 65,000. To handle the volume, the USCIS was forced close the window for new applications the first day to conduct a lottery to determine who would receive them.

The first 20,000 H-1B workers who have a U.S. master’s degree or higher are exempt from the cap. Any that follow the first 20,000 are put into the regular pool from which 65,000 are chosen.

At least two current bills seek to significantly increase the number of H-1B visas available.