United States: Controversial H-1B Lottery Upheld

Last Updated: April 4 2017
Article by Ceridwen J. Koski

A few weeks before H-1Bs will be filed subject to a random lottery, an Oregon judge dismissed a lawsuit challenging the H-1B lottery system, granting summary judgment to United States Citizenship and Immigration Services (USCIS).

The plaintiffs filed a complaint on June 2, 2016, arguing that the H-1B lottery violates an immigration statute that provides that visas shall be issued in the order in which petitions are "filed." The court found that the regulation was subject to Chevron deference (which gives deference to an agency's interpretation of rules) and that "filed" is an ambiguous term to be interpreted by USCIS. In other words, the court found that USCIS was justified in deeming petitions "filed" only after they are selected randomly by the computer. The court's decision is the latest development in the nearly 30-year evolution of the H-1B visa.

The Scarcity of H-1Bs

There are only 85,000 H-1Bs available to private employers on a fiscal year (FY) basis: 65,000 for regular cases and an additional 20,000 for U.S. advanced degree cases. Last year, more than 236,000 cases were received, and we expect similar or more extreme conditions this year. USCIS uses a computer generated random process (or lottery) to select cases for the 85,000 limit or "cap." If not selected, USCIS rejects petitions and returns filing fees. The U.S. advanced degree lottery is completed before the regular lottery.

H-1B visas in their current form were created under the Immigration Act of 1990 (IMMACT), which also created the 65,000 cap. The cap was progressively increased from 1999 to 2003 through the American Competitiveness and Workforce Improvement Act of 1998 and the American Competitiveness in the Twenty-First Century Act of 2000. But since 2004, when the U.S. advanced degree cap was created under the H-1B Visa Reform Act of 2004, the overall H-1B limit has been 85,000. Legislation adjusting the cap has also increased fees, enhanced penalties, and expanded the U.S. Department of Labor's investigative authority over the immigration process.

The Lottery 

The lottery system was created in order to deal with the extreme volume of H-1B petitions submitted. From 1997 to the present day, H-1Bs have regularly been exhausted prior to the end of the fiscal year. Changes to the H-1B process since the mid-2000s have attempted to address the speed with which the cap is met. In 2005, USCIS implemented the use of a random computer selection process. After enough petitions had been received to fill 85,000 slots, USCIS announced the final receipt date and administered the selection process. But by 2008, the limit was met on the first day. USCIS then adjusted its procedures because petitioners had been forced to overnight or courier petitions to be received on the first allowable date, putting intense pressure on overnight delivery carriers and USCIS offices. The current rule implements the lottery for all petitions received within the first five business days of filing (April 1st of each year). In FY 2010 and 2011 it took longer to reach the cap due to the recession, but since FY 2013, the cap has been reached in the first five business days of filing.

Some of the same issues USCIS directly or indirectly addressed in previous years were central to the plaintiffs' complaint. They argued that a waiting list should be used and that the random selection process violated the statute.

Waiting List

The plaintiffs argued that a waiting list should be used because the statute requires that visas must be issued in the order in which they are filed. The court found that the statute is silent on how to handle petitions received in excess of the cap (a waiting list is not part of the statutory protocol) and that silence leaves room for agency discretion. The plaintiffs also argued that a random selection should not be used because it was not part of the statute; they referred to the Diversity Immigrant Visa statute, which expressly requires random selection and reasoned that if Congress had intended a lottery, it would be similarly included in the statute. The court reiterated that the statue is silent on the selection process, so the agency is able to choose how to administer it. Ultimately, the court found that because the lottery is reasonable and Congress had the opportunity to implement a waiting list a number of times, but did not, a waiting list is not required.

Random Lottery

Beyond arguing for a waiting list, the plaintiffs argued that the lottery is unfair because some people never receive a visa while others receive a visa on their first year of trying. Further, the plaintiffs pointed out that the regulation implementing the lottery was an interim rule that was never finalized, so it should not receive as much deference as afforded under Chevron. But the court found that even under the lesser deference standard, USCIS is justified in its implementation of the H-1B lottery under the 2005 and 2008 interim rules. The court also pointed out that the plaintiffs offered no suggestion as to how to order 150,000 simultaneously submitted petitions to create a waiting list, i.e., it is no less arbitrary to use a lottery than to order petitions based on how they are removed from delivery bags. The court reasoned that USCIS's decision to use a lottery rather than a waiting list is the result of responding to the problems created by the intense demand for H-1Bs.

Employers struggle to secure H-1Bs for talented individuals within the current system, and this lawsuit may represent some of that frustration. Last year, almost three times the number of H-1Bs available were filed, and this year we could see even more demand. The court's decision recognizes that USCIS is dealing with an incredibly high volume in a reasonable way based on what they have learned since 1990. The H-1B is a sought-after visa category and continues to be a major concern for employers and legislative bodies.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.