Employers needing foreign talent to fill professional positions obtain work authorization for these individuals most frequently by applying for an H-1B visa. Individuals from across the globe may be sponsored for this type of visa if the position requires a minimum of U.S. Bachelor’s Degree or equivalent. The H-1B visa is often the only way that an individual can work in the United States for a U.S. entity. Unfortunately, there are only 20,000 visas available for people that have a Master’s degree from the U.S. and 65,000 for all other applicants each fiscal year. Demand has far exceeded the supply for years, resulting in a computerized lottery system to obtain the visa.
Opponents of the system believe it is unfair because some companies and individuals allegedly have found ways to circumvent it by filing multiple petitions for the same person or convincing several companies to apply for the H-1B visa for the same person. This can result in some individuals applying year after year and not obtaining an H-1B number and others receiving it on the first attempt. These and other issues have led to calls to eliminate the lottery system.
A class action lawsuit has been filed in the U.S. District Court for the District of Oregon (Tenrec Inc. et al. v. U.S. Citizenship and Immigration Services, Case No. 3:16-cv-00995) to set aside the lottery process. The suit alleges that the lottery system is inconsistent with the statutory law and fraught with problems. The remedy proposed in the lawsuit calls for a better system of assigning priority dates for individuals that allow employers investing in multiple yearly filings to be assigned a priority date based on the initial filing date that progresses every year. This would allow those with rejected H-1B petitions to re-submit petitions and receive a place in line ahead of individuals filing for the first time.
Significantly, the Court denied the government’s motion to dismiss on September 22, 2016, and allowed the plaintiffs the chance to amend the complaint to make explicit allegations that the employer-plaintiffs continue to want to employ the individual plaintiffs with rejected H-1B petitions and those individuals still want to be employed by those employers. A Second Amended Complaint filed on September 26, 2016, made those allegations. Next, the plaintiffs will file a brief in support of their motion for summary judgment and the government will respond. A hearing has been set for December 19, 2016, to hear the merits of the motion. It is unlikely the Court will make a ruling on the day of the hearing, but will do so at a later date.
If the Court issues a decision prior to April 1, 2017 resulting in the elimination of the lottery, it would be a monumental task for USCIS to put new systems in place prior to the FY2018 H-1B cap filing season.