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TLGWelcome to musings from the office of Thompson Law Group where we discuss our most common questions or share our thoughts for the day. If you have any suggestions, please drop us your ideas here.

this is sample copy "borrowed" from an immigration attorney's site:

There were 236,000 petitions filed for H-1B status in April 2016 for only 85,000 H-1B numbers, and USCIS ran a lottery to decide who would get an H-1B with an October 2016 start date.  The lottery distribution itself has been challenged in court as unlawful in the case of Tenrec, Inc. v. USCIS.  That case argues the statute specifies the distribution be "in the order in which a petition is filed" and not randomly.  But whether the agency distributes the visas in a lottery, or in a wait list fashion (first-in first-out), capping the category per year means that there will be a wait to get a number, because those who lose the lottery in successive years are in a de facto waiting line.  Many have entered for three years without a number - that's a wait.  As I have argued before, first-come first-served approach is more fair than a lottery system, with those filing earlier receiving visas earlier.  Running a lottery just allows some to cut ahead in line.  It also allows big companies to file massive numbers of petitions in order to increase their odds.  The case to abolish the lottery distribution process is under advisement before a federal judge and could be decided any day now.

The 85,000 H-1B cap is a quantitative restriction that hampers competitiveness and leads to abuse of U.S. workers.  To be fair, some who are eligible for an H-1B are exempt from the caps.  There are Canadian and Mexican professionals who can utilize NAFTA, and Australians who can use the E-3.  Multi-national companies can utilize the un-capped L-1 visa for managers, executives, and those with specialized knowledge.  Institutions of Higher Education, and non-profit or government research organizations are exempt from the H-1B cap, and can petition for an H-1B employee at any time without regard to the caps.  There are even private entities which can employ someone under exempt status if they are working principally for an exempt employer, or where there is a close affiliation (such as shared board of directors) between the for-profit and exempt entity.  The 65,000 cap set back in 1990 has only been increased, however, by 20,000 by allowing that many who have U.S. Master's degrees to be issued a number.  Unless one of the special exemptions applies, therefore, a U.S. company is prohibited from hiring the global talent they would like.

As a private citizen who reads the news, I have been dismayed to read of the alleged abuses of the H-1B system by companies like Disney and others.  No one should have to train their replacement who is on a non-immigrant visa.  As an immigration attorney, I have seen amazing contributions to businesses by professionals on H-1B visas.  My experience, over the past 20 years (ok, 4 months short of 20 years) of immigration practice, has been that companies hire H-1B workers for those positions which are tough to fill, and that companies end up paying more for an H-1B worker than a U.S. worker.  I represent a wide range of industries including manufacturing, civil and environmental engineering, renewable energy, health sciences, biomedical engineering, and information technology.  In order to maintain global competitiveness, U.S. businesses need to be able to tap the global talent pool.  So the numerical caps definitely get in the way of domestic enterprises being competitive in the global market.  So, is capping the category the best way to deal with abuses?  I firmly believe the caps are not the right tool.