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October 31, 2023 HUMAN RIGHTS

H-1B and H-2B Visas in Crisis: Assessing the Shortage and Its Impact on Immigrant Workers

by Charina Garcia, Evan Gordon, Michelle Jacobson, and Humaa Siddiqi

In the wake of the Biden administration’s findings of unprecedented levels of fraudulent H-1B registrations, the news surrounding this year’s H-1B process has left many applicants anxious, as their dreams of attaining the coveted H-1B visa remain uncertain.

The H-1B work visa allows foreign nationals to work and reside in the United States under a petitioning U.S. employer. Most first-time applicants attain the H-1B visa through a random electronic lottery selection process conducted by the Department of Homeland Security (DHS) each year. The annual quota for the H-1B selections is capped at only 85,000 per fiscal year.

Record H-1B Visa Lottery Submissions Lead to Uncertainty

This year’s FY2024 H-1B lottery submissions saw an unprecedented increase in entries, with 780,884 total registrations vying to be selected in the lottery. The DHS suspects over half of this year’s registrations to be potentially fraudulent, meaning there is no true bona fide job offer behind the multiple registrations. The registration scheme would unfairly increase registrants’ chances of getting selected if left undetected by the DHS.

Based on evidence from past H-1B cap seasons, “USCIS [U.S. Citizenship and Immigration Services] has already undertaken extensive fraud investigations, denied and revoked petitions accordingly, and is in the process of initiating law enforcement referrals for criminal prosecution.” Given these findings, many are hopeful that the DHS will conduct a second round of selections later this year to give those fairly registered applicants another chance.

Shafiqa Kureshi, senior attorney at Fragomen, Del Rey, Bernsen & Loewy, LLP, a leading business-immigration law firm, hears her clients’ concerns and is shocked by the scale of fraud. “People are upset about this news. They are paranoid and believe this is not a fair lottery,” she says. “There are legitimate jobs that are placed in jeopardy as their odds of being selected in the lottery have been substantially reduced.”

The DHS suspects over half of this year’s H-1B visa registrations to be potentially fraudulent.

The DHS suspects over half of this year’s H-1B visa registrations to be potentially fraudulent.


One lucky H visa recipient, who wished to remain anonymous, welcomes the Biden administration’s crackdown on registration fraud. They believe the news to be a long time coming. “This has been building up and going on for a really long time,” they said. “In my home country, people pay consulting companies to place them in the H-1B lottery multiple times. It is not legitimate, and there is no real job offer.”

In one example, the H recipient detailed how many go about the scheming operation. They described how their friend paid a company to place their name in the lottery four times and was ultimately selected. Although there was no real job offer, the company produced fraudulent pay stubs in order to allow them to falsely indicate the presence of a job opportunity to U.S. authorities and receive the H-1B visa. This is just one example of the extreme lengths individuals are willing to go to secure the H-1B visa.

The anecdotal description of the lottery scheme highlights the sheer desperation many feel around the current process as they hope to realize their American dream in the United States. Many feel the current H-1B selection process is an unfair hurdle they must overcome. The news of fraud adds stress on top of the difficulty in getting the H-1B. “People are tired. People are waiting. We want to raise our kids in the United States,” said the H visa recipient.

While the Biden administration’s investigation continues, H-1B visa applicants hope the government will drastically reform the electronic registration process in order to combat the fraudulent attempts to game the system that unfairly disadvantages lawful registrants. “I hope this makes the government more vigilant and tentative,” said the anonymous source. “The companies that are doing this scheming need to be held accountable and blacklisted. I am really hopeful something good will come out of this. In the coming years, I hope the fraud can be reduced and the legitimate candidates get the fair chance they deserve.” 

H-2B Visa Demand Exceeds Numbers Available

For those unfamiliar with the H-2B visa program, this visa category is reserved for foreign workers to provide nonagricultural services on a one-time, seasonal, peak load, or intermittent basis. Like the H-1B program, the H-2B visa is subject to a congressionally set cap of 66,000 visas per year, with 33,000 reserved for the first half of the fiscal year and the rest for the second half of the fiscal year.

However, before employers can submit a Form I-129 petition to U.S. Citizenship and Immigration Services, requesters must first obtain a temporary labor certification from the U.S. Department of Labor, which involves demonstrating a shortage of U.S. workers who are minimally qualified, willing, and available to fill the job openings, akin to the labor market test required by the permanent labor certification (PERM) process. As a prerequisite to obtaining temporary labor certification, employers must obtain a prevailing wage determination to prevent the depression of wages and make efforts to recruit U.S. workers for the job positions to demonstrate a genuine need for hiring foreign workers.

Aside from the myriad complicated and exacting steps that go into obtaining the H-2B visa, one of the most common issues facing the program is that stakeholder demand often exceeds government supply. For example, the hospitality, landscaping, construction, and seafood processing industries often have fluctuating labor demands that are primarily driven by a variety of considerations, such as consumer demand, supply chain conditions, and environmental factors, among others.

According to the U.S. Bureau of Labor Statistics, the number of jobs in 2021 for construction laborers was 1,572,200; the number of jobs for grounds maintenance workers was 1,299,000; the number of jobs for janitors and building cleaners was 2,298,400; and the number of jobs for food preparation workers was 817,400. Each of these job categories is forecasted to experience growth over the next decade.

However, the U.S. labor market often struggles to accommodate the increase in job openings with U.S. workers who are willing and able to fill these temporary nonagricultural positions. While the U.S. Departments of Labor and Homeland Security have recently taken welcome steps to temporarily increase the number of available H-2B visas, these 64,716 supplemental visa allocations are the administrative equivalent of putting lipstick on a pig. And a carveout of 20,000 additional H-2B visas reserved for nationals of El Salvador, Guatemala, Honduras, and Haiti will do little to ameliorate the surge in border crossings from Northern Triangle arrivals seeking employment prospects in the United States.

Systemic steps must be taken at a legislative level to reconcile the minimum number of H-2B visas allotted each year with current U.S. labor market needs. But practitioners and users of the H-2B program can expect little meaningful change in this current divided government, with a republican majority in the House and democratic majority in the Senate. Moreover, if bills such as those recently passed in Florida are a harbinger of what may be expected on a federal level if Republicans retake the White House and Senate majority, stakeholders can likely expect a chilling effect on the H-2B visa program.

Enacting strict new legislation can introduce new obstacles and uncertainties for employers and foreign workers alike, which can lead to reduced program accessibility and a concentration of H-2B visas with employers fortunate enough to afford legal counsel to help them navigate an already complex process. Additional uncertainties with the H-2B program can make it difficult for employers to plan ahead and create stability in their workforce, making long-term business planning and investment difficult. And if employers with genuinely temporary staffing needs are unable to fill positions, this in turn can adversely affect U.S. businesses and have ripple effects on the economy. 

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Charina Garcia

Partner at Wolfsdorf Rosenthal LLP

Charina Garcia is a partner at Wolfsdorf Rosenthal LLP (WR Immigration) with over 25 years of experience as an immigration law practitioner. She currently manages the firm’s Northern California offices, where she has established herself as a trusted legal professional representing individuals on family-based petitions, in addition to Fortune 500 companies and startups on employment-based immigration matters. 

Evan Gordon

Associate at Wolfsdorf Rosenthal LLP

Evan Gordon is an associate at Wolfsdorf Rosenthal LLP, where he helps both individual and corporate clients navigate the intrica-cies of immigration processes using tailored, data-driven solutions. His area of expertise includes guiding executives and treaty in-vestors seeking to establish and expand their businesses in the United States. 

Michelle Jacobson

Partner at Fragomen, Del Rey, Bernsen & Loewy, LLP

Michelle Jacobson is a partner at Fragomen, Del Rey, Bernsen & Loewy, LLP, and has practiced immigration for over 21 years. With extensive experience in corporate immigration law, she leads clients in the establishment and enhancement of their immigra-tion programs while managing risk and compliance-oriented strategies on their behalf. 

Humaa Siddiqi

Associate at Fragomen, Del Rey, Bernsen & Loewy, LLP

Humaa Siddiqi is an associate at Fragomen, Del Rey, Bernsen & Loewy, LLP, where she counsels clients on employment-based nonimmigrant and immigrant visa matters. She works on providing innovative success-driven solutions to both private clients and global organizations.