I’m just now fully coming out of the chaotic, hectic darkness that has clouded every H-1B season for the past many years. Once again, I find myself struggling with “Immigration PTSD” – Post Traumatic Submission Disorder. The cause of this syndrome is two-fold. First, I live with the dreaded anticipation that the number of submissions will be such that not even a fair percentage of my submitted applications have a realistic hope of selection. To make matters worse, I live in fear that, heaven forbid, I have made a minute non-material error, which will cause even a selected application to fail. Sadly, my fears are once again well founded.
This year the USCIS received 233,000 applications for 85,000 available slots. Thus, 148,000, almost two thirds, of the petitions received in the first five days of April will be rejected out of hand without any review. A lottery has been held and the unpicked petitions so painstakingly pulled together by immigration lawyers, with help from innumerable paralegals and legal assistants, and dutifully delivered on time by FedEx, UPS, or the U.S. Postal Service, will be returned.
The data shows that the number of submissions is a direct reflection of the fact that American employers desperately need the workers for whom they petitioned. Simply, they need these foreign workers to help create products, technology, ideas, and innovations. No employer in its right mind would go through this process or angst if they did not. Further, as American Immigration Council Executive Director Ben Johnson recently testified in a Senate Judiciary Committee hearing, those high-skilled immigrant workers have been shown to go on to create even more jobs, thus building our economy and contributing to the success of us all, not just the company for which they work. Hopes will be dashed, business plans will crumble, and instead of surging forward with the right personnel, companies will be stalled again for another year while they try to make do.
Finally, and perhaps one of the greatest sources of stress for those trying to assist employers and better the economy, is that hopes will be dashed not just because the numbers alone do not and cannot possibly account for the number of workers needed, but because the process is one that does not allow for one, literally not one, error.
Our immigration system is broken, not just by its antiquated numerical limitations but also by its process. A missed checkbox is grounds for denial, and although denial is not mandated for such errors, it is permitted. Unfortunately, permission has become a license to kill an otherwise clearly approvable petition.
Transpose a number in a check so that it is off even by only one dollar and USCIS will reject the application. Tax filings, patent applications, and almost any other type of application can be amended. While the law does not bar corrections to immigration applications, that opportunity is simply not afforded to filers. To err is human, except in the context of immigration, at least for applicants.
It doesn’t have to be like this. Congress could tie the H-1B visa cap to actual market demand. It’s not a crazy concept. When we had an economic downturn, demand fell, so the H-1B visa cap was reached in months instead of days. Why can’t we have the same sort of rising cap when our economy is doing well? Similarly, our system does not mandate strict liability or compliance. We do not need Congressional action to dictate that leniency, where permitted, be provided. The laws, common and good economic sense, do that already. The H-1B visa system is long overdue for an overhaul – Congress should get started today.
Written by Leslie A. Holman, AILA President