The H-1B process is expensive, slow, and a roll of the dice—it’s also one of the best ways to find tech talent

No matter how enticing the perks, salaries, and benefit, there’s still an “anchor” weighing down growth in STEM industries, warns Lynden Melmed, partner at Berry Appleman & Leiden. And it’s largely outside HR’s control.

America’s STEM talent-pipeline problem, some say, starts at the top of the funnel. Each year, highly skilled foreign nationals, sponsored by employers, apply for 85,000 coveted H1-B temporary employment visas (20,000 of which are reserved for those with master’s or doctorate degrees from US institutions). If granted, these visas allow workers to live in the US and perform specific, specialized roles for up to six years.

The selection process is often described as a “lottery”—that’s because interest in H1-B visas typically far surpasses availability. This fiscal year, the USCIS received 483,927 registrations. Just 26% were selected to file a petition.

The mismatch between supply and demand is a source of frustration for employers, especially tech companies that are often the top sponsors of H1-B petitions and need specialized talent.

While testifying before the Senate Judiciary in March, Melmed detailed how barriers to professional immigration could cause US companies to lose talent to firms located in countries with less restrictive policies, like Canada. He should know: He’s the former chief counsel of US Citizenship and Immigration Services (USCIS), the agency that controls the H1-B application process.

Caps on hiring foreign nationals, Melmed told HR Brew, prevent HR from finding the right people to help them “move quickly, adapt to new technology, and grow.” He pointed to US semiconductor manufacturing as an example. “There’s going to be a tremendous amount of advanced technology and manufacturing to build those plants, and it’s going to require the best in the world,” he said.

“That process will be more successful and move more quickly if companies involved are able to get the workers, wherever they are, to those locations and working on those projects…I hear it from every single industry…they don’t understand why it’s easier for many of their workers to go to other countries than it is to come to the United States.”

And yet, employers still hang their hopes on H1-B visas. HR Brew talked to experts about the complex process to explain why, despite the pitfalls, HR and legal continue to team up to pursue foreign national talent.

Jump through hoops. First thing’s first: Not everyone who wants a H1-B is qualified, and not every job warrants one. Audrea Golding, partner at Fragomen, explained that companies sponsoring the applicants must submit materials verifying that the job requires a “minimum of a bachelor’s degree” and provides an “appropriate wage for that position in that location.” The employer must also confirm that the candidate is qualified for the position, and allow US workers to apply to the posting.

If the government isn’t satisfied with the provided documentation, Golding said, the USCIS can file a Request for Evidence. If the government still isn’t satisfied, it can deny the application. Under the Biden administration, such denials are at historic lows (4% in 2021), but some worry that new legislation, if passed, could cause this number to rise.

The whole process, Melmed said, involves “cost and timing and government uncertainty.” In short: It’s far from appealing to HR. While hiring a US candidate could be done in a matter of weeks, the H1-B process, Melmed estimated, can take almost a year under favorable circumstances.

“You would be identifying your candidate perhaps in December, January, [or] February, filing [for the lottery] in March, but oftentimes that person couldn’t start until almost the end of the calendar year sometimes, if they were outside the country,” Melmed said, calling the timeline a “major obstacle.”

Why does it have to be so hard? When it was created in 1990, the program, Golding said, was meant to “protect US workers and US graduates from a high level of competition.”

But economists say such a threat never really materialized.

Madeline Zavodny, professor of economics at the University of North Florida, told Vox, “there’s not a whole lot of evidence to back” concerns that foreign nationals are taking jobs. If anything, research has found that in cities with low H1-B approval, there are fewer American tech jobs the next year; in other cases, companies choose to move jobs abroad.

Melmed added that a sizable portion of graduates of US universities qualified for specialized roles are foreign nationals, not Americans. He believes that if there was an easier option, like hiring US employees, companies would probably take it.

“The fact that companies are still continuing to do it really does say something about how strong the demand is,” Melmed said. “Companies don’t go through that process if there’s an option of avoiding an eight-month delay, thousands of dollars in costs and government fees, and thousands of dollars in legal fees. That’s just common sense. They are facing a very serious staffing challenge for them to consider that as an option.”—SV

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