Update: On April 12, 2016, USCIS announced it had received 236,000 filings.
The H-1B cap and lottery brings anxiety to hundreds of thousands of employees and employers across the country, and the immigration attorneys and paralegals who assist them. Who can blame them? There are only 65,000 regular H-1B numbers available each year, plus 20,000 held aside for those who have master’s degrees or higher from U.S. educational institutions, and in 2015 there were nearly 233,000 applications filed for those 85,000 slots. Things are expected to be worse this year, when petitions are accepted in the 5 business day window from April 1, 2016 to April 7, 2016. Every application is subjected to a random lottery, and the chances each year are getting lower, from one in three to possibly one in four this year. There are some who are lucky and get picked in the lottery, and others who have entered and failed to gain a number for multiple years. Those who lose the lottery are often forced to leave their jobs, homes and lives behind, often uprooting children and leaving the country.
But as I am about to explain, the government’s lottery system is illegal.
Let’s start with the language of the statute, INA § 214(g)(3) (8 USC § 1184(g)(3)). That law states that “Aliens who are subject to the numerical limitations of paragraph (1) shall be issued visas (or otherwise provided nonimmigrant status) in the order in which petitions are filed for such visas or status.” So, that’s what the law says. H-1B petitions are filed on a form I-129, and sent to either the California Service Center or Vermont Service Center depending on the location of employment. What does it mean when the law says H-1B beneficiaries shall be issued visas or given that status in the order in which petitions are filed? To find the answer to that question, one need only look to the wording of another statute dealing with petitions, INA § 203(e)(1) (8 USC § 1153(e)(1)), which reads, “Immigrant visas made available under subsection (a) or (b) shall be issued to eligible immigrants in the order in which a petition in behalf of each such immigrant is filed…” Now, the wording of those two sections, the H-1B section, and the immigrant petition section, are virtually identical. Each states that the issuance shall be in the order in which petitions are filed. But in the immigrant context, there is no lottery, no rejections, and no beneficiary who will potentially have a never ending filing contest each year. That is because in the immigrant petition process, USCIS assigns what is called a “priority date” to each immigrant petition based on the order in which it was filed, or in some cases based on the underlying labor certification filing date. But in all cases a date is assigned that represents the order in which it was filed with a government agency. The petition is not rejected. Instead, the employer and beneficiary wait until there are sufficient visa numbers available for the filing date, which represents that person’s place in line.
Contrast that with the way H-1B petitions are handled! USCIS gives employers just 5 business days each year in which to file, and then enters each petition into a lottery. 85,000 petitions are accepted, and then two months later all the other tens of thousands of applications are rejected and sent back, checks uncashed, to the petitioners. These rejected petitions are not assigned a priority date. The crazy thing is, a company could petition for the same individual year after year and still continue to be rejected, even though their initial H-1B filing was a year, or two years, or more, prior to the other petitioners whose cases were accepted. There is a word in the law for this kind of practice: arbitrary and capricious. Government rules and regulations which are arbitrary and capricious will not be upheld by the courts. Not only that, the statute clearly states that H-1B petitions shall be processed in the order in which they are filed. The will of Congress, expressed through clear language in the statute, prevails over any contrary agency practice, rule or regulation. It is of no avail that the agency rejects any petitions under the lottery and refuses to allow the filing, and thus the place in line, since the lottery and the rejection process are entirely illegal. Just think if this system were in place for immigrant petitions!
The solution for the immigration agency is to cease the illegal lottery process, and allow H-1B petitioners to file a petition and receive a priority date. At such time as there are visas available, the H-1B petition beneficiary would be eligible for a visa or for a change of status. It may be that USCIS will need to revise its forms and procedures to comply with the law. It is possible that the I-129 petition will need to reflect approval of the H-1B classification, but not the status, until such time as there are H-1B visas available. This would not be unlike the immigrant categories, where there is an orderly (albeit long) process to obtain status after a petition approval in the numerically backlogged categories. But the lottery system is not legal, and it is not the solution. It is unfair to subject employers and employees to the whim of a system of chance, when there is no basis in law to do so. When Congress has determined a lottery process is necessary, it has enacted specific provisions allowing for this, such as in the case with the Diversity Visa Lottery.
The Diversity Visa Lottery is covered by INA § 203(e)(2) (8 USC § 1153(e)(2)), which states “Immigrant visa numbers made available under subsection (c) (relating to diversity immigrants) shall be issued to eligible qualified immigrants strictly in a random order established by the Secretary of State for the fiscal year involved.” Congress meant for that to be random. By stating that H-1B petitions, like immigrant petitions, be processed in the order in which they are filed, and in other sections involving Diversity Visa immigrants stating the process is to be random, Congress has mandated that USCIS not conduct a lottery for H-1B petitions. The principle of statutory interpretation relevant here is expressio unius est exclusio alterius, which means expression of one thing is the exclusion of others. Since Congress expressed intent for a random process for the Diversity Visa Lottery, but not for the H-1B or immigrant visa process, then random process is excluded as an option for H-1B processes.
Since it is highly unlikely that USCIS will change its policy on its own, our firm has decided to consider proceeding with a class action lawsuit against the agency to compel an orderly system which is not based upon the arbitrary lottery system. We have prepared an online registration questionnaire for those affected employers or employees who have filed twice or more and have not been selected, and who would like to be considered as class plaintiffs or class members.