On April 1, the U.S. will use a lottery to distribute the annual allotment of H-1B visas. If history is a guide, a major portion of those visas will go to offshore outsourcing firms that move IT work overseas. Meanwhile, non-outsourcing firms -- especially those firms that may be hiring only one or two visa workers -- stand a good chance of losing the lottery.
President Donald Trump can change the system to favor smaller users of the visa, say critics of the program, but only if he acts quickly.
Trump has been critical of the visa program, and his administration is considering an H-1B visa distribution system that favors the "best and brightest." Although Trump's administration hasn't detailed how this might work, it would favor a random visa lottery distribution that gives priority to firms paying high wages, workers with advanced degrees and certain skills.
Although it's not yet clear what the new administration is planning, Trump has promised fast action. In November he said action on work visas would be a "day one" action by his administration.
The Trump administration "committed themselves to an H-1B reform plan," said Russ Harrison, director of government relations at the IEEE-USA. "I don't know if Mr. Trump is backing away from his commitment, but he made a promise to American workers to fix the H-1B system on his first day in office."
Harrison said his group didn't take the day one promise literally, but if Trump doesn't act soon he will miss the opportunity to change the lottery by April 1. That means that a major share of the annual visas will go to firms that offshore IT work.
"If the lottery goes off as it always does, he'll be letting down the American worker," said Harrison.
The random nature of the lottery encourages large offshore outsourcing firms to file as many petitions as possible. There are two H-1B caps. The U.S. sets 20,000 H-1B visas aside for advanced-degree graduates of U.S. schools, and the remaining 65,000 are available under what's called the base cap.
In 2013, a Computerworld analysis of H-1B data showed that offshore outsourcing firms received more than 50% of the visas allocated under the 65,000 base H-1B cap. That is almost certain to repeat in the 2018 visa allocation, which is decided in the first week of April.
This random lottery allocation system has created a lot of frustration, especially among small businesses seeking limited numbers of workers on a visa. For instance, Tenrec, a web development firm, filed an H-1B petition for lead developer who is a citizen of the Ukraine. The company didn't win and is part of a lawsuit seeking a change in how the visa distribution is run.
To change the system, the Trump administration can direct its agencies to develop new H-1B lottery regulations.
Creating a new regulation can be a lengthy process, but Bruce Morrison, a lawyer and former Democratic congressman from Connecticut who represents the IEEE-USA, believes that the administration can issue an interim rule. This would be an expedited process that can be accomplished in 30 days, with a comment period after.
The Trump administration may not be able to do everything its wants to with the H-1B visa program through administrative action. But Morrison believes that existing law does give the administration some latitude.
For instance, the law already sets a classification system for types of visa users. There are dependent firms (which have more than 15% of their workforce on a visa) and non-dependent firms, which have less than that percentage.
Morrison said that preferring non-dependent firms to dependent firms in a visa distribution "is something the [rule-writing] agency clearly could do."
Giving non-dependent firms priority would put the offshore outsourcing firms -- which are all H-1B-dependent firms -- at a disadvantage in the visa distribution.
There are differences of opinion about the extent of latitude that Trump has with changing the lottery. It is believed that anything the Trump administration does with the lottery will be subject to an immediate court challenge.
William Stock, an immigration attorney and president of the American Immigration Lawyers Association, believes that any change of the lottery will require statutory authorization, meaning legislation by Congress. If the Trump administration attempts to change the allocation method to something other than a lottery, he believes it will be thrown out of court.
But to be clear, it's not just the small firms that stand to gain from a system that favors non-dependent visa users. Most of the large IT suppliers, such as Microsoft and Google, hire large numbers of visa workers but are still considered non-dependent.
This opens up potentially another problem, say some critics who believe the biggest threat facing IT workers from the H-1B visa program is age discrimination. If large IT firms have more access to H-1B visas they may prefer hiring the younger, and somewhat indentured, visa workers.
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