Challenge to H-1B Lottery Keeps an Eye on the Jackpot


By: Agne Krutules

On September 22, 2016, an Oregon federal judge denied United States Citizenship and Immigrations Services’ (USCIS) jurisdictional challenge to a proposed class action lawsuit brought by two small US businesses and their foreign would-be employees in Tenrec, Inc. v. USCIS, allowing the case to go forward.

The Plaintiffs’ complaint alleges that the USCIS administers its H-1B specialty occupation nonimmigrant visa worker program in violation of federal law. Specifically, under 8 U.S.C. § 1184(g)(3), H-1B visas will be issued “in the order in which petitions are filed for such status or visas.” (emphasis added).  However, in 2008, the USCIS adopted a new procedure for selecting H-1B “cap” petitions for review that the Plaintiffs challenge.  Pursuant to 8 C.F.R. § 214.2(4)(8)(ii)(B), all the applications received within the required five business day window, which opens on April 1, are subject to a random computer selection.  The petitions not selected in this lottery stage are returned to the applicants without any further review. Over the past four years, USCIS has rejected approximately 425,500 filings after conducting a random lottery process without assigning any of these rejected petitions a priority date representing the order in which it was filed.

The lawsuit alleges that there is no legal justification to support the H-1B lottery system and the USCIS’s random selection procedure is arbitrary and capricious. The Plaintiffs believe the statute implementing H-1B requires a system which issues H-1B visa numbers in the order in which H-1B petitions are submitted. The lawsuit seeks class action status, and demands that the current annual five-day filing window be replaced with year-round filing.

This lawsuit could have a dramatic effect on the H-1B process. While the demand for H-1B visas is always extremely high, there is currently a statutory cap on the number of new H-1B visas that may be issued each fiscal year. Currently, only 65,000 new H-1B visas are available each year. There are an additional 20,000 H-1B visas available for foreign nationals with a master’s degree (or higher) from a United States university. In 2016, USCIS received a record 236,000 petitions for 85,000 available H-1B visas.