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Lawsuit Seeks Transparency Regarding Selection of H-1B Visas

lottoH-1B visas, which allow skilled workers in “specialty occupations” to come to the U.S. temporarily, are in extremely high demand. Federal immigration law caps the total number of visas the government may issue each year at 65,000. Each year, U.S. Citizenship and Immigration Services (USCIS) begins accepting H-1B visa petitions for the upcoming fiscal year on a designated date, and each year, the number of petitions received hits the cap in a matter of days. Once it has received enough petitions to meet the cap, USCIS uses a computerized selection process to determine who will receive H-1B visas. Little is known, however, about this selection process. A lawsuit filed by two advocacy groups seeks to uncover more information about it. Am. Imm. Lawyers Assoc., et al. v. U.S. Citizenship and Imm. Svcs., No. 1:16-cv-00856, complaint (D.D.C., May 20, 2016).

A “specialty occupation,” according to federal immigration law, requires the use of “highly specialized knowledge,” and the applicant must have “a bachelor’s or higher degree” in a particular field of study “as a minimum for entry into the occupation in the United States.” 8 U.S.C. § 1184(i)(1). Companies in the STEM fields (Science, Technology, Engineering, and Mathematics) frequently seek to hire skilled workers from abroad through the H-1B program. USCIS is only permitted by law to begin accepting H-1B petitions for the upcoming fiscal year six months in advance. It typically opens the “H-1B season” on April 1, since the federal government’s fiscal year begins on October 1. For more than a decade, demand for H-1B visas has quickly exceeded the supply.

Competition for H-1B visas is fierce, although once an employer gets a petition filed, whether or not that petition is approved seems to be up to chance. If USCIS receives enough petitions to meet the cap in the first five days, it uses a “lottery” to determine which petitions will proceed to adjudication. It returns the petitions that are not selected to the petitioning employers and refunds their filing fees. According to the lawsuit filed by the American Immigration Lawyers Association (AILA), USCIS has provided few, if any, details about how this lottery system works, despite being highly important information for both employers and specialty workers.

AILA filed suit in May 2016 to compel USCIS to produce information about the H-1B lottery program under the Freedom of Information Act (FOIA), 5 U.S.C. § 552. In its complaint, it identifies information about the lottery that it wants USCIS to disclose, including:

– “how the electronic random selection process works”;
– “the process…for accepting or rejecting a petition for inclusion in the lottery”; and
– “how USCIS determines how many petitions to select,” including “whether USCIS is actually allocating all of the available visa numbers.” AILA, complaint at 2.

H-1B visa attorney Samuel C. Berger practices in New York City and Northern New Jersey. We represent people who plan on immigrating to this area, or who have already made their home here. We also advocate on behalf of businesses and families who are petitioning for a visa for an employee or a loved one. To schedule a confidential consultation to see how we can help you, contact us today online, at (201) 587-1500, or at (212) 380-8117.

More Blog Posts:

USCIS Issues Final Rule Extending Work Eligibility to Spouses of Certain H-1B Visa Holders, New York & New Jersey Immigration Lawyer Blog, April 22, 2015

Government, H-1B Temporary Work Visa Holders Fight Against Unlawful Practices by Employers, New York & New Jersey Immigration Lawyer Blog, January 14, 2015

Cap on H-1B Temporary Worker Visa Petitions Reached in Less than a Week, New York & New Jersey Immigration Lawyer Blog, May 14, 2014

Photo credit: bykst [Public domain, CC0 1.0], via Pixabay.