Two Lawsuits Challenge the Government’s H-1B Lottery System

Recently, two lawsuits have been filed in federal district court challenging various aspects of the H-1B lottery system. The first case is a class action filed in the U.S. District Court for the District of Oregon against USCIS and alleges that the randomized lottery system used to select a limited number of H-1B petitions for processing is “arbitrary and capricious.” The suit asks the court to hold unlawful and set aside USCIS’s regulations that require H-1B petitions to be filed during a five-day filing window and subjecting them to a random lottery in which losing lottery filings are rejected and not assigned a priority date. The case asserts that USCIS should be issuing receipts and priority dates for all cases because there is no statutory basis for the agency to require a filing window, a random lottery, and a rejection system. Indeed, the plain language of the statute requires that H-1B petitions be processed in the order in which petitions are filed. Plaintiffs argue that an orderly priority date assignment system and waiting list should be established similar to the system in place for immigrant visa petitions. The current regulatory system results, says plaintiffs, in a potentially never-ending game of chance for petitions filed during the window each year, with some unlucky individuals trying and failing each year to obtain an H-1B number, while some lucky lottery winners obtain a visa number in the very first year a petition is filed on their behalf. The plaintiffs ask the court to order defendants (USCIS) to assign priority dates to improperly rejected H-1B petitions that are resubmitted for acceptance by members of the class; order USCIS to accept H-1B petitions throughout the year and assign priority dates; and make H-1B numbers available based on the order in which they are received. In the past four years, almost 500,000 cases have been rejected.

 

The second lawsuit filed against DHS and USCIS seeks declaratory, injunctive, and other appropriate relief under the Freedom of Information Act to obtain information so that the public has a clear understanding of USCIS operating procedures and policies when administering the H-1B lottery. The suit was filed by a private law firm, the American Immigration Council (Council), and the American Immigration Lawyers Association (AILA). It alleges that USCIS has never been forthcoming in describing the selection process. The suit is intended to let the American public and those most directly affected see how the lottery system works from start to finish, in order to learn whether the system is operating fairly. Despite the government’s stated commitment to transparency and accountability, prior attempts to learn more about how the H-1B lottery process is conducted have been resisted.

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