Once again—for the seventh straight year—the H-1B quota was reached in five days, triggering U.S. Citizenship and Immigration Services to embark on what has become an annual ritual: the random selection of petitions via lottery to fill the Congressionally mandated cap of 65,000 H-1B visas (plus an additional 20,000 for master’s degree candidates). This year, 201,011 petitions were filed, exceeding the totals in the past two years. The odds of being selected remain well below 50 percent, leaving roughly 100,000 eager, educated, innovative workers each year to find jobs elsewhere and contribute their talents in countries that have more efficient and welcoming immigration policies.

What could break this annual cycle of events that costs U.S. business considerable lost investment in time, money and talent-hunting? Congress could modernize our immigration laws so that visa issuance correlates with economic need.

Coinciding with the start of H-1B cap filing season on April 1, former Senator Orrin Hatch, with the support of some of the largest tech and other companies, released a report1 urging Congress to raise the caps on H-1B visas and provide other incentives to retain foreign graduates of U.S. universities, including a fast track to citizenship without needing to first obtain temporary H-1B status.

The H-1B system is long overdue for an adjustment. The cap of 65,000 visas was set when the H-1B category was established nearly 30 years ago, in 1990. Think about it. Before the Internet. Before the global economy. Before The Simpsons. Today’s tech industry that relies on H-1B workers was in its infancy in 1990. Since the H-1B was introduced, U.S. GDP has doubled, per capita GDP has risen 67 percent, and the number of businesses in the U.S. has increased by at least 28 percent.

There is precedence for increasing the number of visas during periods of strong economic growth. In 1999 and 2000, Congress raised the ceiling on H-1B visas to 115,000 to accommodate the demand for high-skilled workers, and from 2001 through 2003 Congress temporarily tripled the cap to 195,000 to meet labor needs resulting from an economic boom that was largely fueled by the tech industry. In 2004, however, the quota reverted to 65,000 and an additional 20,000 visas were added for H-1B candidates holding master’s degrees or higher from U.S. universities. For the last 15 years, these caps have remained unchanged.

Hatch, who as a senator repeatedly but unsuccessfully sponsored bipartisan legislation to raise the H-1B caps, asserts in the introduction to the report that choosing between more H-1B workers and protecting American workers is a “false choice” because the two are linked. “We must continue to attract overseas talent to sustain the very innovation that has made our nation the most prosperous in the world,” he says. Today, about 7.5 million jobs remain unfilled and 83 percent of U.S. companies report difficulty in filling open positions, while H-1B holders and U.S. employers, increasingly frustrated by the system, are looking to set up shop in other countries. The report calls for doubling the H-1B cap and opening up other routes for high-skilled workers to relieve chronic oversubscription of the H-1B program.

It’s time to modernize our system. In fact, it’s seven years overdue. The current business environment—economic growth, low unemployment, labor shortages, and intense competition for global talent—provides a perfect recipe for expanding the pool of high-skilled workers available to U.S. businesses. The only ingredient missing is political will. 

Delya Ghosh is a Partner in the San Francisco office of Berry Appleman & Leiden LLP.

1 “Barriers to Recruiting and Retaining Global Talent in the U.S.,” Orrin G. Hatch Foundation and FWD.us, April 1, 2019, https://36shgf3jsufe2xojr925ehv6-wpengine.netdna-ssl.com/wp-content/uploads/2019/03/19-03-29-high-skilled-report.pdf

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