Shortly after last year’s H-1B lottery results were shared and H-1B receipt notices and rejection notices were mailed out, a class action lawsuit sought to debunk the lottery process. The plaintiffs argued that the lottery violated the immigration law.
The H-1B cap as we know it was set at 65,000 by congress back in 1990. In 2004, the master’s cap exemption was created to provide an additional 20,000 visas for those with U.S. advanced degrees. The H-1B cap has been met before the end of every fiscal year since 1997. And, for the last several years, you all know it has been exhausted immediately upon the opening of the filing window.
Since December 1991, regulations have required USCIS to reject and return applications received after the numerical limit has been met and congress has not changed this procedure since the regulation created it in 1991. In 2005, USCIS adopted rules to use a random computer selection process. Under these procedures, USCIS estimated the number of petitions it would need to fill the 85,000 slots, monitored the number of petitions received, and notified the public of the date that USCIS had received the necessary number of petitions. Only applications received on that last day were part of the random computer selection. This worked out OK in FY 2007, when it took 2 months to receive enough petitions to fill the 85,000 slots. But, in FY 2008 the limit was reached on the very first day. After that experience, USCIS changed the regulation again.
USCIS had found that rejecting only the petitions received after the final receipt date caused employers to spend significant effort and money to send petitions by overnight delivery for receipt by USCIS on the first allowable date. This also caused problems for overnight delivery carriers and for USCIS offices receiving petitions. Thus, USCIS changed the procedure to include in the computer selection process all petitions received within the first five business days to account for a wider range of mail delivery times.
This is where the procedure stands today, and the cap has been reached in the first week for most years since. Congress has considered bills over the years that would, among other things, eliminate the random selection system, but none of them were passed into law.
The plaintiff in the case in an employer that had filed an H-1B petition on April 1, 2016, but it was not selected in the lottery. The employer filed suit to urge USCIS to eliminate the random selection process. In its place, they sought to require USCIS to process all petitions in the order in which they are filed and then create an ongoing waiting list once the visas ran out so that those not selected in one year would have first dibs on getting selected the next year.
The court first determined that because the immigration statute does not provide any set procedure or guidance for USCIS to follow when all petitions end up being filed on the same day, it is up to USCIS to decide how to process them. The court then must consider whether USCIS’ method is reasonable.
The court first decided that the plaintiff’s suggestion of creating an ongoing waiting list would defeat one of the major purposes of the H-1B visa, which is to facilitate employers’ urgent needs for high-skilled workers. A waiting list could also very likely last years and would cause the LCA to become stale by the time a particular worker finally gets to the top of the list.
The court also found that it was practically impossible to implement a system to select petitions based on the order in which they were received (as opposed to the random computer generated selection process) because all the petitions are delivered at practically the same time. The process would come down to which delivery driver managed to arrive first or which envelope a mailroom worker chooses to open and process first.
So, after almost a year of litigation, the court ultimately decided that USCIS’ random selection process is reasonable and returning the petitions that were not selected is also reasonable.
What USCIS should really do is allow electronic filing with basic information about the employer and employee, then select which applicants can proceed to submitting petitions. That would save all the time, money, and effort of employers preparing thousands of petitions just to have over half of them mailed back a month later.
But, for now, we’ll have to live with the current lottery system.