H-1B Visa Lottery Challenge Still Alive

By Laura D. Francis

Sept. 23 — A federal lawsuit challenging the annual lottery for a popular high-skilled temporary visa program overcame a legal hurdle and will go forward ( Tenrec, Inc. v. U.S. Citizenship & Immigration Servs. , 2016 BL 312928, D. Or., No. 3:16-cv-00995, 9/22/16 ).

For the past four fiscal years, employer demand for H-1B visas has dwarfed supply, set by law at 65,000 per year—with an additional 20,000 for foreign workers with advanced degrees. The visa program, heavily used in the information technology industry, is popular among tech giants such as Microsoft Corp., Google Inc., Intel Corp., Amazon Inc., IBM Corp. and Apple Inc.

The U.S. Citizenship and Immigration Services, which administers the H-1B program, uses a lottery to determine which applications it will process. But federal law requires the agency to process applications on a first-come, first-served basis, the lawsuit claims.

The Sept. 22 decision by Judge Michael H. Simon of the U.S. District Court for the District of Oregon denied the USCIS’s attempt to throw out the case. The lawsuit, apparently the first of its kind, was filed as a proposed class action by two employers and two workers they had unsuccessfully sponsored for H-1B visas.

H-1B Workers Can Sue

Simon rejected the agency’s claims that foreign workers seeking H-1B visas can’t sue if they don’t get them. He also rejected the idea that the employers suing alongside the workers haven’t been injured by the lottery.

A handful of federal courts have ruled that foreign workers seeking employment-based green cards—which allow them to live and work in the U.S. permanently—can challenge their denial. Simon didn’t see a distinction between these cases and workers seeking temporary employment visas.

The judge also said the employers’ case isn’t moot just because this year’s H-1B lottery has come and gone. Considering the history of H-1B petitions far exceeding the number of visas available, it’s likely the employers will lose next year’s lottery too, he said.

Brent W. Renison of Parrilli Renison in Portland, Ore., is representing the employers and foreign workers. Benjamin C. Mizer, William C. Peachey, Glenn M. Girdharry and Joshua S. Press of the Justice Department are representing the USCIS.

Pyrrhic Victory?

A final ruling in favor of the employers and prospective H-1B workers would turn the H-1B application process on its head. As it stands now, all H-1B petitions filed on April 1 and the next four business days get thrown into a computer-generated lottery, which randomly selects which petitions will actually be processed by the agency. The rest are returned to the employers that filed them.

If the USCIS doesn’t do a lottery, H-1B petitions should get a “priority date” that determines the order in which they will be processed, the lawsuit claims. That means the petitions could be considered as the visas become available the next fiscal year, rather than employers having to file petitions all over again.

But that may not actually help employers that lose the H-1B lottery, American Immigration Lawyers Association President William Stock told Bloomberg BNA Sept. 23.

If some companies are able to file thousands of H-1B petitions and there is a wait list rather than a lottery, that means an employer seeking only one H-1B worker might have to wait five years or more for the visa, said Stock, who practices with Klasko Immigration Law Partners in Philadelphia.

But the visa is supposed to be a rapid fix for a temporary labor need, “so setting up years-long waiting lists is antithetical to the H-1B,” he said. “It might as well be a green card.”

New Protocol Needed

It will be “really interesting” to see where the lawsuit goes from here, Fragomen, Del Rey, Bernsen & Loewy attorney Chad Blocker told Bloomberg BNA Sept. 23. “That it’s survived this challenge is interesting,” he said.

Blocker, who practices in Los Angeles, said he thinks a victory for the employers and workers is a long shot. But the practical effect of eliminating the H-1B lottery really depends on what the government sets up in its place, he said.

“The request for relief here is maybe a little simplistic as far as first-come, first-served,” he said. “I don’t know that it really solves the cap problem.”

“We would still be looking at an April 1 date” as the first day employers could submit petitions, because of the legal requirement that they can’t be filed more than six months before the Oct. 1 start of the fiscal year, Blocker said. And if visas are allocated on a first-come, first-served basis, it’s likely everyone would file on that day.

“The agency would have to outline some sort of protocol for employers to follow” if that happens, Blocker said. “It’s not as though you can hand-deliver H-1B petitions,” he said; they are typically delivered via courier service. He envisioned FedEx and DHL trucks lined up outside the USCIS’s Vermont Service Center waiting to deliver the hundreds of thousands of H-1B petitions.

Other Approaches Suggested

A better approach would be to create incentives for the visas to be used only where they are needed to fill workforce gaps, Stock said. Part of the problem with limited H-1B supply is that there are companies whose entire business model is built around hiring H-1B workers, he said. Maybe there should be incentives aimed directly at them, such as requiring that they sponsor a portion of those workers for green cards instead of for H-1Bs, he said.

A bill ( H.R. 5801) introduced by Rep. Darrell Issa (R-Calif.) does take aim at such employers by upping the threshold salary they would have to pay their workers before they could get out of a requirement that they attest they couldn’t find U.S. workers for the jobs. Currently, that salary level is only $60,000, a “relatively low level of wage in the market today,” Stock said.

The Issa bill would raise that to $100,000 and also require employers to file the attestation even if the workers have graduate degrees.

In addition, creating an exemption to the annual H-1B cap for workers who received science, technology, engineering or mathematics degrees from a U.S. college or university likely would reduce the number of petitions below the current caps, Stock said.

Blocker agreed, also suggesting an exemption for workers with graduate degrees obtained in the U.S. in any field.

“There needs to be a statutory and regulatory solution,” Blocker said. “Most in the business community believe that the cap needs to be raised.”

That, combined with prioritizing certain petitions over others based on the characteristics of the worker, would be a much bigger help than eliminating the H-1B lottery, he said.

To contact the reporter on this story: Laura D. Francis in Washington at lfrancis@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

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