With the annual H-1B lottery upon us, it seems fitting to offer a very short primer on the challenges of employment-based immigration. The H-1B visa is for workers in a “specialty occupation,” which is defined as a job that requires a specific bachelor’s or higher degree. A common example is a civil engineer. For most private sector employers, there are only 85,000 visas available each year. In recent years the odds of getting one of the coveted visas have hovered around 20%.
The numbers are easy to understand. What it means to employers and employees is another story. Many H-1B visas go to graduates of U.S. universities, who often benefit from one or three years of employment authorization through their student visas. To remain the U.S. and continue working, the next most common option is the H-1B visa. Here’s where it becomes challenging. Employers and employees alike are faced with having enjoyed a positive working relationship for a few years, only to lose out in the lottery and have no other option for continued employment in the United States. This is disruptive to the organization’s operations and the individual’s career.
For the lucky few who do receive one of the H-1B visas in the lottery, that’s only the first (if they are abroad) or next step (such as the recent graduate) in their immigration journey. The next step is for their employer to sponsor them for a green card, i.e. lawful permanent resident status. H-1B visas are good for only six years, and the green card process can take much longer for persons born in countries with historically high numbers of immigrants to the United States. (Reaching certain milestones in the green card process makes the individual eligible for H-1B status beyond the six-year maximum.) Here enters the next quota.
In the permanent visa (green card) system, there are only 140,000 visas available in the employment-based categories. No one country can receive more than 7% in any of the several categories. Until recent years, only persons born in India and China saw lengthy backlogs. Now most countries have backlogs for many categories. Each month the State Department publishes its Visa Bulletin, where cutoff dates are reported for quota-based immigration. In looking at India for March 2026, for an individual being sponsored for a job that requires a university degree and up to four years of experience, the cutoff date is November 15, 2013. That means that this person’s employer needed to submit the first step of the green card process on or before November 14, 2013 for the green card to be approved in March 2026. That sounds like a 13-year wait, but it’s not so simple. The dates in the Visa Bulletin can go forward or backward or not move at all from month to month. For certain, however, a wait of more than 10 years is common.
These are just two examples of the immigration laws we have on the books now. Senators Obama and McCain were sponsors on a comprehensive immigration reform bill in 2007. That was the last time Congress ever got close to coming up with new laws that would match today’s realities. With the current enforcement-focused approach and typical retort of, “Just apply for a work visa or green card,” the system we have now is not working for the United States. Employers and employees alike need something better than simply a 20% chance of getting a work visa and a decade more waiting period to find out finally if they can stay here and continue to contribute their talent.