Class action lawsuit challenges H-1B selection process

Two employers whose petitions were rejected in the H-1B lottery have filed a nationwide class action lawsuit against U.S. Citizenship and Immigration Services, challenging the lottery’s legality. The suit seeks to eliminate the lottery and replace it with a system in which H-1B petitions are given priority dates based on the date they are filed.

Key points:

• The lawsuit claims there is no statutory basis for the H-1B lottery and rejection of unselected petitions because federal law requires that H-1B cap visas be issued in the order in which petitions are filed.
• It proposes that H-1B cap-subject petitions should be accepted throughout the year, assigned priority dates and, once the cap is met, put on a waiting list based on their priority date.
• By way of a class action, the lawsuit seeks to cover any employers and beneficiaries whose H-1B cap petitions were rejected in the four lotteries since April 2013. The suit notes that roughly 425,500 H-1B petitions have been rejected over the past four years on the basis of the lottery.

Background: The lawsuit aims to overturn regulations that set the H-1B lottery system, calling it “a potentially never ending game of chance” with some individuals failing year after year and others winning in the first year of filing. It calls the lottery an “arbitrary and capricious” way of selecting petitions that runs afoul of federal immigration law. The suit was filed shortly after the American Immigration Lawyers Association filed a lawsuit seeking increased transparency in the H-1B lottery process.

BAL Analysis: If successful, the lawsuit could change the way H-1B petitions are selected for processing. Although the current suit is relatively small, the plaintiffs are calling for additional parties to become a part of the class action, and the issue has the potential to affect hundreds of thousands of people. BAL will continue to follow the lawsuit’s progress and update clients if any significant developments arise.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact BerryApplemanLeiden@bal.com.

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