Lawsuit on H1B lottery

Washington D.C. – The American Immigration Council (Council) and the American Immigration Lawyers Association (AILA) have teamed up on a lawsuit against the U.S. Department of Homeland Security and U.S. Citizenship and Immigration Services (USCIS) seeking information about the government’s administration of the H-1B lottery. The lawsuit, filed last Friday, was brought under the Freedom of Information Act (FOIA). Hughes Socol Piers Resnick & Dym, Ltd. is co-counsel with attorneys from the Council.

Every year, U.S. employers seeking highly skilled foreign professionals submit petitions to USCIS on the first business day of April for the limited pool of H-1B nonimmigrant visa numbers that are available for the coming fiscal year. With an annual limit of 65,000 visas for new hires—and 20,000 additional visas for professionals with a master’s or doctoral degree from a U.S. university—employer demand for H-1B visas has exceeded the statutory cap for more than ten years.

If USCIS determines at any time during the first five business days of the filing period that it has received more than enough petitions to meet the numerical limits, the agency uses a computer-generated random selection process (or “lottery”) to select a sufficient number of H-1B petitions to satisfy the limits, taking into account a percentage of the petitions selected which will be denied, withdrawn, or otherwise rejected. Petitions not selected are returned to the petitioning employers. U.S. employers, foreign nationals seeking H-1Bs, and immigrationlawyers are keenly interested in how USCIS administers the lottery process.

USCIS has never been forthcoming in describing the selection process. “When petitions are submitted to USCIS in April, it’s as if they disappear into a ‘black box,’” said Melissa Crow, Legal Director of the American ImmigrationCouncil. “This suit is intended to pry open that box and let the American public and those most directly affected see how the lottery system works from start to finish, and to learn whether the system is operating fairly and all the numbers are being used as the law provides.”

“Despite the Obama Administration’s public commitment to the values of transparency and accountability, frankly, our attempts to see into this process have been resisted,” said AILA Executive Director Benjamin Johnson. He continued, “Instead of responding to our requests for information about how the lottery is conducted, how cap-subject petitions are processed, and how the numbers are estimated and tracked, USCIS  has kept the process entirely opaque. This litigation is intended to shine a necessary light on an important process in America’s businessimmigration system.”