A Question about Those 172,500 H-1B Petitions

This article was last updated on May 25, 2022

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USCIS has announced that 172,500 petitions have been filed for 85,000 H-1B slots in this hiring season. That’s a major increase from the 124,000 filed last year, and the new number is sure to be used by the H-1B employers as they seek still higher ceilings from Congress.

But the news also raises what may be a new question: “To what extent is the number of petitions artificially increased – at little cost to the industry – to game the system?”

Think about it for a moment.

If Mega-Outsourcing Company A wanted 500 new H-1Bs starting October 1, 2014, and if it calculated (based on the 2013 figures mentioned above) that it would get only about 85/124ths (68.5%) of the workers it wanted in the resulting USCIS-run lottery, why not double the number of applications in the next round so that Company A gets all the indentured workers it desires.

So, instead of filing 500 applications, the company files for 1,000.

Suppose the other IT giants did the same thing, deliberately filing for more workers than they wanted, knowing that the lottery will reduce the numbers back to the actual target. If many firms did that it would mean that the total numbers applied for were well in excess of the number actually desired. This would produce two happy – if totally contrived – products for the corporations:

• each of the big companies would wind up getting the number of H-1Bs wanted; and
• all of the companies would benefit, politically, by the seeming “shortage” of H-1B slots.

Further, USCIS’ rules make certain that this is not too costly to the companies playing this game. As the USCIS press release cited above makes clear:

For cap-subject petitions not randomly selected, USCIS will reject and return the petition with filing fees …

Now the ploy I have in mind is not totally cost-free for the employers. Each of the extra H-1B multi-part petitions would have to be completed and filed, but this is little more than a clerical chore because the desired H-1B workers are not each filling unique jobs – most of them are pretty interchangeable, particularly with the big firms.

I must say that this is all speculative – I do not have a source in the personnel or legal department of a big outsourcing company whispering this to me.

But if the tiny Center for Immigration Studies can figure out this fairly simple maneuver, doesn’t it seem likely that the lawyers and the employers who make millions in this field have already had this idea? And, perhaps, put it into practice?

Corporations, of course, would only use this system in years in which it appeared ahead of time that there would be more applications than the ceilings allowed. This is such a year.

I am not a lawyer and do not know if what is suggested is illegal. It is certainly devious, selfish, and immoral, but that’s another question.

Finally, it appears to me that USCIS has no defense mechanism in place to handle such a scheme, nor would it have any motivation to use it, if it had one.

It would help if USCIS simply pocketed all the fees, whether the company got a worker or not; that would discourage but not end the activity described above. But that would be putting the nation’s interests above those of the employers, and I’m afraid the agency rarely thinks like that.

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