A class action lawsuit filed is attacking the lottery method for selecting the H-1B visas awarded each year to foreign workers in specialty occupations. Tenrec, Inc., et al v. USCIS, U.S. Dist. Oregon, Case No. 3:16-cv-995. Highly skilled employees in computer science, engineering, medicine, education, law, or other sophisticated and in demand fields qualify for H-1B visas. However, demand outstrips supply by a factor of 3 applications for every one available H-1B visa. The class action lawsuit alleges that the H-1B lottery violates the text of the statute that requires the visas to be issued“in the order in which petitions are filed.” 8 USC 1184(g)(3).
In 2005 the United States Citizenship and Immigrations Services (USCIS) adopted regulatory changes to the procedures for awarding H-1B visas from a first-come-first-served basis to a computer generated random allocation of all pending H-1B visa applications received by a certain date. The USCIS includes in its lottery all of the H-1B petitions received within the first five business days after the application window opens on April 1st. The procedural changes arose after USCIS became inundated with tens of thousands of applications in a single day, and heard numerous complaints from applicants who missed out on being the first to file.
Congress has not increased the number of H-1B visas since 2004, when it fixed its number at only 85,000. The USCIS has received far more H-1B applications than can be granted for years. The number of applications only seems to grow. In 2013 USCIS received 124,000 H-1B applications, then 172,000 in 2014, followed by another 233,000 in 2015, and 236,000 in 2016. Before the lottery, employers spent significant amounts money and effort to ensure that their application arrived at the USCIS office before the 85,001st application. The H-1B selection process resulted in little more than a race to the USCIS office. As a consequence the USCIS instituted the lottery and provided the five-day application window to accommodate all applications and provide them each with the same likelihood of success.
On September 22, 2016, the District Court of Oregon denied USCIS’s motion to dismiss the lawsuit. The opinion denying the motion to dismiss relied heavily on the injury the plaintiffs suffered as a result of the H-1B visas not being awarded in the order that Congress specified. The statute clearly provides that the visas are to be awarded on a first-come-first-served basis. The USCIS exercised its authority to carry out the statute by treating every H-1B application received the exact same through its lottery regulations.
If the lawsuit strikes down the H-1B lottery, perhaps employers would build new offices right next to the USCIS building to hand deliver its H-1B applications on April 1st, the first day in which applications for the next fiscal year can be made. If the H-1B lottery is overturned, some poor team of USCIS employees would have to take a mountain of applications and begin numbering them in the order in which they were received until they count the first 85,000. At least that is the reading of the statute that Congress passed. Congress could adopt the lottery method, but it requires action. The only action Congress has recently taken on the H-1B visa is to make them even more difficult to obtain.