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H-1B employers sue USCIS alleging that lottery regulations are invalid

Two companies have sued the U.S. Citizenship and Immigration Services (USCIS) seeking to set aside the current H-1B visa lottery system.

The H-1B visa classification permits a U.S. employer to offer a professional position to a degreed foreign national and employ that foreign national to work in such a position in the United States. Tenrec, Inc., a web development company, sought to hire a Ukrainian citizen, and Walker Macy LLC, a landscape architecture and urban design firm, sought to hire a Chinese citizen. Both companies are based in Portland, Oregon and each one filed its H-1B petition on or shortly after April 1, 2016, the earliest time period permitted by regulation to obtain a sought after H-1B visa number for an October 1, 2016 employment start date. Neither company’s H-1B petition was selected in the USCIS H-1B lottery. USCIS implemented an H-1B lottery by regulation to address how it will proceed when USCIS receives more H-1B petitions than there are statutorily allocated H-1B visa number permitted per fiscal year. In 2016, USCIS received a record 236,000 petitions for 85,000 available H-1B visas.

The lawsuit alleges that there is no legal justification to support the H-1B lottery system. The plaintiffs believe the statute implementing H-1B requires a system which issues H-1B visa numbers in the order in which H-1B petitions are submitted. The lawsuit seeks class action status, and demands that the current annual five-day filing window which is part of the H-1B lottery system be replaced with year-round filing.

This employers’ lawsuit follows a suit filed by a U.S. immigration attorneys’ organization demanding that USCIS produce documents showing how the H-1B lottery process works. The plaintiffs in that suit previously filed a Freedom of Information Act request and claim that the government’s response to that request was inadequate.

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