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Two Lawsuits Filed Against DHS, USCIS Question and Challenge H-1B Visa Lottery Process

USA VISAA lawsuit was recently filed by the American Immigration Council (AIC) and American Immigration Lawyers Association (AILA) that questions the lottery process associated with the issuance of H-1B visas. Two companies have also filed a class action allegation complaint regarding the matter.

The H-1B Visa Lottery Process

The Department of Homeland Security (DHS) and the U.S. Citizenship and Immigration Services (USCIS) are facing lawsuits concerning the H-1B visa, which is the most commonly used work-authorized visa category. Companies use the H-1B process to employ immigrants who have attained at least a bachelor’s degree.

The problem that companies face when filing for H-1B visas is that there is a statutory cap of 65,000 visas available every year. In addition, 20,000 out of the 65,000 are reserved for applicants who have master’s degrees and doctorate degrees from a U.S. institution. When there are more than 65,000 petitions in a fiscal year, the USCIS uses a random selection process – similar to a lottery system – to select which applicants to consider. The USCIS then returns the petitions that were not selected, as well as the filing fees.

The USCIS claims that the computer-generated random lottery system is the fairest way to select which applications will be reviewed.

The Class Action Lawsuit

Walker Macy LLC and Tenrec, Inc. filed a class action suit against the USCIS, arguing that the H-1B lottery system is illegal because the language of the statute does not allow for random selection. The statute states that applicants “shall be issued visas (or otherwise provided non-immigrant status) in the order in which petitions are filed for such visas or status.”

Based on the language of the statute, the lawsuit argues that instead of the lottery system, the USCIS should implement a priority system based on the filing date. In other words, applicants should be given a “number” in the line.

This year alone, 236,000 H-1B petitions were filed within the first five days of April. The lawsuit contends that the filing date priority system will help applicants find out when they will be issued a visa, instead of questioning whether or not they will be selected at all. This also helps companies employing foreign nationals know if their workers will have secure employment authorization.

The AILA & AIC Lawsuit

The lawsuit by AILA and AIC simply seeks to clarify how the lottery-based H-1B system works, arguing that a complete understanding of the selection process will help both applicants and companies make sound decisions. The groups have been attempting to obtain information since 2014, using the Freedom of Information Act (FOIA).

These two lawsuits help highlight the problems of the H-1B visa application process. So if you plan to obtain an H-1B visa or are looking to find the best alternative to an H-1B, contact Lyttle Law Firm. We will help you find the best options regarding your immigration status.