Immigration Matters - 2016


H1B Lottery Facing Legal Challenges

The H-1B is a highly sought nonimmigrant visa intended to employ workers in specialty occupations. In order to qualify for this visa, the worker must hold at least a bachelor's degree or its equivalent that is related to the specialty occupation and there must be a valid employer-employee relationship with the petitioning U.S. employer.

The H-1B is subject to an annual cap limited to 65,000 visa with an additional 20,000 set aside for workers who earned a master's or higher degree from a qualified United States institution. The USCIS begins accepting H1B petitions for the new fiscal year on April 1st. The cap has been reached each year since 2004 with the number of applications steadily increasing. The last 4 years the number has been reached within days. In 2016, USCIS received over 236,000 petitions during the first five days of filing in April. As a result, the USCIS has used a computer generated selection process or the “lottery" to select the number of H1B petitions to satisfy the regulatory limited.

Lawsuit to Require Transparency

This lottery has been subject to public scrutiny by employers, foreign workers, and immigration advocates. In May, the American Immigration Council (Council) and the American Immigration Lawyers Association (AILA) brought a lawsuit under the Freedom of Information Act against USCIS, seeking information about the administration of the H-1B lottery. The suit was filed upon USCIS's failure to response to a FOIA request on the H-1B lottery by withholding records that describe how the USCIS tracks and counts H1B petitions and visas each year.

After the April 1st opening of the filing period, if the USCIS determines during the first five business days that more than enough petitions have been received to meet the cap, a computer-generated random selection process (or “lottery") is used to choose the number of H-1B petitions to satisfy the limits. Petitions not selected are returned to the petitioning employers and immigration lawyers.

USCIS has shared very little about the selection process and how the system works from start to finish. AILA's lawsuit was intended to bring transparency to the process and allow greater understanding of how the “lottery" works, including how many petitions are ultimately selected to account for denied or unused petitions so that the numerical limit is reached. The organizations also hope to gain a better understanding of how USCIS keeps track of the visa numbers to ensure that the full number of available visas is actually allocated each year.

Lawsuit to Require New Protocols

In the case of Tenrec, Inc. v U.S. Citizenship & Immigration Services Recently, two employers and two employees have filed a lawsuit questioning the methodology of selecting H-1B petitions, claiming that the current random selection process designed to conform to the cap limitations is in violation of federal law. The plaintiffs claim that the random statistical selection of petitions is out of compliance with the governing statute:

“Aliens who are subject to the numerical limitations of paragraph (1) shall be issued visas (or otherwise provided nonimmigrant status) in the order in which petitions are filed for such visas or status." 8 U.S.C. § 1184(g)(3).

Currently, all H-1B petitions are delivered in hard copy to one of three USCIS service centers: California Service Center (CSC), the Vermont Service Center (VSC), or the Nebraska Service Center (NSC). The plaintiffs allege that since petitions received in the first five days are all considered in the random selection process, and are not issued receipt notices, they are not being processed “in the order in which petitions are filed." The Plaintiffs claim “that the random selection process is arbitrary and capricious and contrary to the statutory requirement that petitions be processed in the order received." Plaintiffs are asking that the lottery be eliminated in favor of a priority date system based on the date of receipt of the H1B application.

The Defendants filed a motion to dismiss the lawsuit, challenging the ability of the Plaintiffs to bring the lawsuit. The Defendants claimed that the employees do not have standing to challenge the process as they are not those petitioning for the visas. Further the Defendants maintain that as the Plaintiffs are seeking nonimmigrant employment status they are not protected by the INA “because the statute is designed to protect American workers and employers, not foreign workers."

The Judge Michael H. Simon denied the defendants' motion to dismiss the case and addressed some important issues in the majority opinion of the United States District Court for the District of Oregon. He looked to other case law on the issue of the employees standing that has recognized the right of those seeking an immigrant visa to challenge the decision in court. As such, he stated that “The Court does not find the difference between immigrant and nonimmigrant visas to be a persuasive distinction on the question of Article III standing" that would justify finding that the visa petition beneficiary has standing.

Further, an H-1B visa recipient can eventually become a permanent legal resident through subsequent petitions, and “[e]ven if the Individual Plaintiffs could not parlay their nonimmigrant work visa into permanent residency, they are still 'more than just a mere onlooker' because it is their 'status that is at stake' when USCIS takes action on an H-1B petition." The majority opinion continues: “Additionally, the Individual Plaintiffs lose the “significant opportunity" to obtain authorization to live and work in the United States, earning United States wages, and enjoying life in the United States."

The Defendants also challenged the standing of the employers on the basis of not demonstrating injury as a result of the existing lottery process, but the ruling found that there is a “concrete and particularized injury-namely that the Employer Plaintiffs wanted to hire the individual Plaintiffs and were unable to do so because of USCIS's action."

The District Court's ruling will allow the lawsuit to continue forward so that the court can make a determination on whether USCIS has failed to follow regulations for H-1B CAP petition processing. Ultimately, the courts will decide whether the lottery system will continue or if a new system will replace it to comply with the existing rules.

H-1B Guidelines for Employers

Regardless of the eventual outcome of this case, demand for the H-1B visa continues to far outpace the current available visa. Accordingly, there are a few guidelines you should follow in filing an H-1B petition:

1. Make sure the petition arrives on April 1.
2. Carefully proofread the petition, checking for missing information, incorrect addresses, and that the appropriate signatures are on the required pages.
3. Make sure all the proper fees are included, with checks payable to the US Department of Homeland Security.
5. Ensure that the bachelor's or master's degree is closely related to the specialty position with the petitioning employer.
6. Explore exemption possibilities. If a worker has previously been counted against the cap, he or she may qualify for a cap exemption if the worker has not reached the 6 year limit for H-1Bs. Certain research and non-profit institutions are also cap-exempt.

It is imperative to have an immigration attorney review your paperwork. If your petition is selected, you do not want it to be rejected on a technicality, or delayed when USCIS requests additional evidence. Challa Law has assisted petitioning employers and beneficiaries across a variety of fields. Contact us today to determine if an H-1B is right for you or your company.

- Courtesy of Challa Law. More details at ChallaLaw.com