Newsroom HomeBlogsStoriesSoundtrack ProjectNewsroom ArchivesChamber Home Page

The Future of the H1-B Lottery


United States Citizenship and Immigration Services (USCIS) announced on April 17 that it had received 199,000 H-1B petitions for the FY 2018 H-1B cap. The H-1B is the primary visa employers use to hire foreign workers and is limited to positions that require at least a Bachelor’s degree.  Only 65,000 H-1B visas are available for employers each fiscal year (the H-1B Cap).  Certain types of not-for-profit institutions, such as universities, are exempt from the cap, and 20,000 applications for individuals working at for-profit companies, but holding advanced degrees from US institutions, also are exempted from the cap each fiscal year.  Every April, USCIS begins accepting H-1B applications for the next fiscal year. All applications properly received in the first five business days of April are put through a lottery to be selected for the both the 65,000 H-1Bs allocated under the cap and the 20,000 H-1Bs exempted from it. While this year’s numbers represent a 15.7% decrease from the 236,000 petitions that USCIS received during the FY 2017 filing period, they still show the difficulty that employers, and especially small employers, have in obtaining H-1Bs.
Many small employers are discouraged from even trying to file for H-1B visas because the process is costly, and the chance that a given application will be chosen in the lottery is only about 30%. While filing fees are returned for cases that are not accepted, employers still must pay for the services to prepare those applications. Employers also must make staffing decisions, taking into consideration the uncertainty of the process. For a company that only needs to make one hire, gambling on the H-1B lottery to fill that position may not make sense. Larger employers, by contrast, can afford to file for more H-1B visas than they actually need. They also generally have the in-house staff needed to prepare the applications and do not need to rely on outside guidance for the process. Larger employers also seem to get the lion’s share of the available H-1B visas. For example, according to Natarajan Chandrasekaran, CEO of Tata Consultancy Services (TSC), India’s largest IT outsourcing company, TSC applied for 4,000 new H-1Bs visas in 2016, of which 1300 were selected. In 2015, TSC applied for 14,000.[i]
Adding to the uncertainty of the H-1B program, President Trump signed an executive order on April 17 directing a full review of the H-1B visa program, as part of a continued push to clamp down employers that hire foreign labor instead of American workers. The centerpiece of this directive known as “Buy American, Hire American” is a proposal to replace the H-1B lottery with a system that distributes visas on the basis of wages, skills and education. To the extent that this review will improve the process of obtaining H-1B visas, it is sure to be welcomed by small employers. Turning the program into a bidding war, however, where only the biggest employers can play and win, will force smaller employers out of the process. Such a result could unfairly favor Silicon Valley or employers in high-paid areas like New York City; leaving small to medium employers in areas such as Memphis shut out of the H-1B program.
The executive order does not mean there will be immediate changes to the H-1B program, but instead requires federal agencies to review the H-1B program and propose reforms. It is unclear what kinds of changes, if any, will come from this review.  Further, any major changes will generally require action by Congress. Nevertheless, possibilities include reducing the total number of visas, increasing prevailing wages and further prioritizing U.S. and advanced degrees.


David Jones is a partner in the Memphis office of Fisher Phillips. Have questions about a legal or labor and employment matter and how it may affect your business? Contact Fisher Phillips at

Posted: 5/4/2017 2:45:05 PM | with 0 comments
Filed under: FisherPhillips, SmallBusiness

Blog post currently doesn't have any comments.
Leave comment Subscribe

Is seven < than seven? (true/false)

Your business may be small, but that doesn't mean that your impact can't be huge! The Greater Memphis Chamber's Small Business Council serves to encourage, support, recognize and be a resource to small- and medium-sized businesses in the Memphis area. Here, our talented panel of contributors will present big ideas that could make a huge difference to your small business. And don't be afraid to ask questions ... no matter how small.

Sales & Small Business Ownership
Voss W. Graham is CEO and Senior Business Advisor for InnerActive Consulting Group Inc. He is known by his clients as "a knowledgeable partner who helps our team achieve business growth." He provides practical experience as a small business owner for over 29 years, yet is often engaged with Fortune 500 companies in the development of their people and business strategies.

Public Relations
Several professionals and strategists from the local Obsidian Public Relations firm provide excellent advice on everything from research to media relations to event planning. They believe that all companies, no matter how big or small the company or its budget, should have a public relations plan driving how they manage their relationships with key stakeholders. Public relations is an integral part of doing business the right way.

Human Resources
Joel Myers is a career Human Resources professional, with over 40 years in the field including 26 years in consulting.

Small Business Advice
Tom Pease is a small business owner of an office equipment dealership called e/Doc Systems, Inc. He has also owned a full-line Kawasaki dealership as well as a document shop. He used 30+ years of experience in owning a business to author two books, including: Going Out of Business by Design: Why 70% of Small Businesses Fail and Small Business Survival 101. He also has published 85 columns in The Memphis Daily News as the Small Business Advisor.

Marketing & Public Relations
Lori Turner-Wilson is CEO and Founder of RedRover Company, a sales development, marketing and PR consulting firm. Lori works with companies large and small, from start-ups to mature organizations, to help them improve the productivity of their sales force and the return on their marketing investment. Lori writes a weekly syndicated column for the Daily News, Memphis News, Nashville Ledger, and Desoto Times, among others, titled “Guerrilla Sales & Marketing,” for which she won a 2011 Summit International Award and 2012 International Communicator Award.

Design and Digital Strategy
Founded in 1999, inferno provides brand development, advertising, public relations, design and digital marketing services to clients across a broad spectrum of industries. Headquartered in Memphis with a satellite office in Kalamazoo, Michigan, the award-winning firm produces results-driven work by passionately combining strategic thinking, creativity and culture to ensure the success of its clients. For more information, visit

Labor & Employment Law
Fisher Phillips attorneys are ready to help you take a stand: in court, with employees and unions, or with competitors. Fisher Phillips has the experience and resolve to back you up. That's why some of the savviest employers come to the firm to handle their toughest labor and employment cases. The firm has 350 attorneys in 32 offices, including Memphis. For more information, visit

Since its founding in 2005, Paragon Bank has maintained a solid focus on the community and customer service. For more than 10 years, Paragon has delivered innovative products and financial expertise, convenience, and a deep understanding of what both businesses and individuals need from a ban, in order to provide solutions that make a difference. In the areas of business or personal banking, lending options or wealth management, Paragon delivers cutting edge technology, an experienced team and the most service-oriented staff of any community bank.