H-1B Visa Petition Race For Fiscal 2009 Is Under WayH-1B Visa Petition Race For Fiscal 2009 Is Under Way

The mad dash has begun. Employers on Tuesday began filing H-1B visa petitions in hopes their applications are among the 85,000 that will be randomly selected by the U.S. government, allowing those companies to hire foreign tech workers for fiscal 2009 beginning Oct. 1.

U.S. Citizenship and Immigration Services last April received 133,000 petitions in two days before deciding to stop accepting any more H-1B visa petitions. This year, USCIS said it will accept the petitions for five business days, or until April 7, so that more companies have a chance to submit their applications for the random lottery.

But leaving open a five-day window means that USCIS will likely receive a record number of H-1B applications this year.

"There'll be a flood" of H-1B visa petitions submitted, predicted Angelo Paparelli, president of the Alliance of Business Immigration Lawyers and managing partner of Paparelli & Partners, a law practice with offices in New York and California.

The five-day window gives more time for smaller companies "that need just one or two" foreign professionals to "get their ducks in order," Paparelli said. However, the large volume of petitions expected to arrive at USCIS doesn't help those companies' chances of having their applications picked in the random lottery.

That's why Paparelli, who supports the H-1B visa cap being raised, has something in common with opponents of the H-1B visa program. Paparelli and others want to see the H-1B visa lottery dumped in favor of a more "logical system." Among the alternatives to the lottery system being suggested is evaluating the merit of the employer's request, evaluating the qualifications of the individual, or showing a documented shortage of skills in various geographic regions of the United States.

The Greater Cleveland Partnership (Cleveland's Chamber of Commerce) is proposing changes to the H-1B visa system to create "high-skill immigration zones" in the Midwest and "Rust Belt" cities.

Kim Berry, president of U.S. IT worker advocacy group Programmers Guild, says he's looking for several H-1B visa reforms, including "replacing the random lottery with competitive system where employers compete based on salary -- a reasonable proxy for skill -- just as they must do for the top candidates among U.S. workers."

USCIS in recent years "came up with the lottery when it realized the numbers were rising" for H-1B visa petitions it was receiving each year, said Paparelli. USCIS says the lottery system provides a fair chance for all valid H-1B applicants to be selected.

However, immigration attorney Efren Hernandez of the McClean, Va., firm Greenberg Traurig, says making dramatic changes to the way USCIS approves petitions wouldn't be easy. Before joining the firm last fall, Hernandez was director of business and trade for USCIS, where he was responsible for policy and operational oversight of all employment-based immigration, including H-1B visas.

Having USCIS individually evaluate whether a foreign job candidate would be filling a position in a geographic region with specific skill shortages also would require additional research resources by the Department of Labor, which currently isn't funded by H-1B fees, said Hernandez. "The time and resources required for USCIS to evaluate the petitions based on very complex criteria or specific market sectors would be great," he said.

Such major changes wouldn't likely come without legislative reforms to the program, he said. And none of those kinds of deep discussions is likely to happen in Congress or the White House again until after the presidential election this year, he said.