SALT LAKE CITY — Wednesday was Day 1 of the application window for 85,000 visas for highly skilled workers, and U.S. Citizenship and Immigration Services was already talking about resorting to a lottery.
"If USCIS receives an excess of petitions during the first five business days, the agency will use a lottery system to randomly select the number of petitions required to meet the cap. USCIS will reject all unselected petitions that are subject to the cap as well as any petitions received after the cap has closed," an agency news release said.
Considering the agency received 172,000 applications for 85,000 spots last year and more than 200,000 applications are expected for the 2016 allotment, a lottery appears to be a sure thing. Last year, numbers of applications exceeded available spots in five days.
"Anytime you have a lottery, it’s not something you can count on. Businesses like certainty and surety," says Jonathan Johnson, Overstock.com's chairman of the board.
Absent immigration reform that lifts the caps on visas allowing U.S. companies to employ more international workers in science, engineering and high-tech fields, the only sure bet is that a growing number of highly skilled jobs in the United States will go unfilled and international graduates of American colleges and universities will take their education and know-how to other countries.
"We’re hurting the economy, and we’re sending them to go work for competitors overseas and helping those competitors get bigger, stronger and compete better against us," Johnson said.
Roger Tsai, a Salt Lake immigration attorney who represents businesses, said his law firm filed twice as many H-1B visa applications this year than in 2014.
While increased numbers of applications may signal the economy is improving and U.S.-based businesses have plans to expand, immigration attorneys have to temper their clients' expectations.
“Bottom line, we have to build in their expectations that the majority of cases will be denied or rejected," he said.
The cap, which allows for 65,000 visas for international workers with bachelor degrees and 20,000 for those with graduate degrees, was as high as 120,000 in 2001, which was the same year as the Sept. 11 attacks.
"Congress had the ability to extend the higher cap number but chose, obviously, not to," Tsai said. "Congress could choose to increase those numbers based on political pressures."
Earlier this year, Sen. Orrin Hatch, R-Utah, introduced legislation to raise the cap to 115,000. The Immigration Innovation Act of 2015, commonly referred to as the I-Squared Act, would also increase access to green cards for high-skilled workers by expanding the exemptions and eliminate the annual per country limits for employment-based green cards.
"This bill is a common sense approach to ensuring that those who have come here to be educated in high-tech fields have the ability to stay here with their families and contribute to the economy and our society,” Hatch said when he introduced the legislation in January.
Johnson said he supports the I-Squared Act because it would enable international students educated in the United States to remain in the country to work.
"My view is, the caps have got to be raised significantly. We, the United States, educate lots of really fantastic workers, people from abroad. They like living in the United States. They’re entrepreneurs, they’re developers, they’re innovators. They want to work for U.S. companies. They want to continue to live here. We just don’t have enough visas to let them do that," he said.
Johnson said some people mistakenly believe highly skilled workers are displacing American workers. Two to three other jobs are created when companies hire a highly skilled worker, he said.
To explain the unmet demand another way, Johnson said there are seven open jobs for every IT professional in Utah.
"That means those jobs are going unfilled and those are jobs that create more jobs," he said.
Not all the applications are for technology-based businesses.
Tsai said his law firm filed an application on behalf of a school district seeking to hire a teacher to instruct students in Mandarin Chinese.
"There’s a good number of smaller high-tech companies, locally. There's a nutraceutical company seeking a new chief executive officer. There are interesting examples where local companies are trying to find talent and they’re trying to find the best talent. Some of those folks are not necessarily from the U.S.," Tsai said.
Johnson said he remains optimistic that Congress will pass some form of immigration reform, particularly with respect to highly skilled workers.
"I think that the right approach for Congress to take is to focus on making it easier for people to come to the country legally. If we do that, in effect, making a door that’s easier to get through, then protecting the borders will be easier," he said.
"The analogy that I like to use is: If you come to my home for a party and can ring doorbell, I’ll let you in. I don’t think you’ll ever climb through my bedroom window. If we make the door easier to come through, we don’t need to put bars on the window."
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