h1b visa lottery lawsuit no more lottery priority date

H1B Visa Lottery Lawsuit – Lottery to Be Replaced With Waiting List?

Raghu H1B Visa 14 Comments

What? H1B Visa Lottery Lawsuit? Where did this come from? Just when things are getting crazy with President Trump vs H1B Visa, now we have a pending H1B Visa Lottery lawsuit to eliminate the H1B Lottery?

What’s  covered here:

  • What is that “H1B Visa Lawsuit”
  • When this lawsuit was filed?
  • Who filed it (Plaintiffs)?
  • What’s the Impact?

H1B Visa Lottery Lawsuit

I am tracking this H1B Visa lottery lawsuit against USCIS for over 6 months now. Most lawsuits don’t get any steam and gets dismissed. But, not this one. A typical lawsuit takes time to get to a point where Judge can give a decision.

There are several stages that a Lawsuit would go through, like filing a complaint, amending the complaint, defendants would file a motion to dismiss, plaintiffs may ask for summary judgement, then the defendants would file a response,  so it goes for several months before it comes to a point where Judge can issue a Decision.

Now, this Tenrec, Inc. v. USCIS lawsuit has come to a point where Judge can issue a decision any moment.

What is this H1B Visa Lottery Lawsuit ?

Just like STEM OPT Lawsuit. It became a big news only after the judge revoked the STEM OPT rule, until then, very few people were even aware of a lawsuit.

One such lawsuit is an H1B Visa Lottery Lawsuit.

We are waiting for a decision any moment, it can pretty much eliminate the H1B Visa Lottery. H1B Visa 2018 season is all set to start in the month of April 2017.

Now, you must be thinking, what no more H1B Visa lottery? Sweet. But, wait, what’s the alternative?

To understand the alternative option (as proposed in the lawsuit), you should learn about Green Card Process.

Do you know how the Green Card process works? Here’s a guide for green card step and stages.

There’s only a certain number of green cards are issued per country per year per category (EB1, EB2, EB3, etc). Once the Green Card quota is filled for a fiscal year, employers don’t have to file a new application the following year. USCIS add’s the green card application to a waiting list and assign a Priority Date.

But, for H1B Visa, once the quota is over, there’s no waiting list. There’s no Priority Date. H1B Visa application packages that are not selected in the lottery are returned back to the employer by USCIS.

The employer would apply again in the next year’s H1B Visa season opens in the month of April.

So, why do USCIS use a Priority Date and Waiting list for Immigration petition?

Why USCIS is not using a Priority Date or Waiting List for H1B Visa application?

Well, that’s the same question asked in this H1B Visa Lawsuit.

Group of employee’s filed this H1B Visa Lottery lawsuit back in June 2016 against USCIS. They are asking USCIS to eliminate the lottery and replace it waiting list and Priority Date similar to the Green Card application process. Here’s the sentence of Immigration law the plaintiffs are referring in their complaint against USCIS:

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.”

“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…”

After the case was filed, USCIS requested to dismiss this case, arguing that only the employer can file such lawsuit, not beneficiaries.

Judge Simon said that for immigration petitions (like Green Card), if an application is denied, the beneficiaries have been allowed to challenge the decision. So, under the similar arguments H1B applicants would have the same rights to file a lawsuit.

Then a few more months went by and now all the paper work have been completed to respect to the lawsuit. Now, the decision rests in the hands of the Judge.

If the decision is in the favor of Plaintiffs then H1B visa lottery could be replaced with Waiting List and Priority Date.

If the decision is in favor of USCIS then, I assume that H1B season would continue as in the previous years.

Next, you would be asking (and thinking)  some what if questions. I know, I can read your mind.

  • When will we know the decision?
  • Why is no one else talking about this yet?
  • What if there’s waiting list for H1B, how does that work?
  • What will USCIS if the Judge rules in favor of plaintiffs (removing the lottery)?
  • It could be years before I can get my H1B Visa if there’s a waiting list.  Is that correct?

As I told you before, I have been tracking this lawsuit from June 2016. I wanted to see if this would not be dismissed and get to a point where Judge would have to decide on this case. It survived for 7 months now. So, I think it was time to write about this.

Stay tuned for updates about this H1B Visa Lawsuit.

Let me make this real clear, as of this writing, there’s no decision about removing the H1B Visa lottery. I will post an update when there’s a decision. If USCIS wins, then this is not a big deal. If the plaintiffs win, this will be a headline news!

Update – Feb 10, 2017 

The plaintiffs have requested for Unopposed Motion for Voluntary Dismissal. 

dismiss h1b visa lottery lawsuit

Which means? They (those who filed the lawsuit) are asking the Judge to dismiss the case (more like withdrawing). I don’t the reasons yet.

Update – Feb 17, 2017 (Decision Case is till Pending)

Following comment posted by Brent Renison (Lead Counsel for this Case) in the comments section below.

The lawsuit is not being dismissed. The February 10 filing was just to remove two plaintiffs only. Two more plaintiffs remain in the lawsuit to proceed with the case, so the case is not over as you state in your post. In class action lawsuits, sometimes plaintiffs drop out, or new ones are added. We are still awaiting a decision from the judge.

 

Comments

  1. Brent Renison

    The lawsuit is not being dismissed. The February 10 filing was just to remove two plaintiffs only. Two more plaintiffs remain in the lawsuit to proceed with the case, so the case is not over as you state in your post. In class action lawsuits, sometimes plaintiffs drop out, or new ones are added. We are still awaiting a decision from the judge.

    Brent Renison
    lead counsel

    1. Author
      Raghu

      Hello Brent,

      Thanks for the update. I have updated the page to reflect your message.

  2. Satish

    Any idea/guesses how this lawsuit might affect extension of H1B after first 3 years ?

  3. Satheesh T.

    If the lottery is removed, I think it will be terrible for the following reasons:
    1) Currently, under OPT (36 months) rule, although a person only gets slightly more than 1/3rd chance of getting a visa, atleast that person gets the visa immediately (in the next fiscal year). If there’s a waiting list, a person might have to wait for years until a visa is available, similar to the GC process. The plaintiffs, in this case, are probably Indians who did not get their H1B selected in the first couple of tries, and think that the system is unfair to them, without thinking about all the consequences.

    2) Indian IT companies and US-based desi consultancies will exploit this system to the fullest extend the same way they do now, and flood the system with unneeded applications so people like me who have 2 degrees from the US will never be at the front of the queue.

    3) As long as Indian IT companies and desi consultancies are exploiting the visa process, this problem will never go away. Personally, I think US graduates and exceptionally talented and experience people from other countries are more deserving to get the H1B rather than any TD&H who gets his/her resume padded from the consultancies , and provisions should be made to give preference to more deserving people, similar to Eb1, Eb2 etc.

    1. Author
      Raghu

      Here’s the sad part – If USCIS doesn’t win this case, waiting list was expected to apply from 2013 till last year. Essentially, H1B quota for this April and many more seasons will be over even before it begins. If they decide to implement a waiting list, I hope they have one for Advanced Degree Cap and one for General Cap. On the side note, the same waiting list system is followed for GC. That’s what makes this case unique. Plus, USCIS tried their best to dismiss this case, but the Judge didn’t do that. Let’s wait for the decision.

  4. Venky

    Queueing system for H1B is ridiculous!

    If that’s the case, no one comes for Masters and how will they keep H1B applicants in the queue who applied from India?

    Spending time on thinking this is huge waste of time in itself unless USCIS comes up with even more clever plan?

    1. Venky

      Also my honest request to Raghu, PLEASE PLEASE put a date on the articles when they are published. Right now we can see only 3 fields ‘Raghu/ H1B Visa/ # comments’ . Please include the date published and the date of latest update.

      Thanks a lot again for your time you spend on this blog.

      1. Author
        Raghu

        Venky, I removed the dates on purpose. It has greater benefit for Search Traffic. You are the first person ever to ask the date to be added. I will rethink 🙂

  5. Ganapathysubramanian G

    If, ashtiw you indicate, the suit is decided in favour of implementing queue system with priority date, then first year applications [which normally is 3 to 8 times of allowed numbers] will see 3 to 8 years wait list? As Mr Vinod Chandra observes, which employer [except a few] will keep the same job offer open?
    Also from second year onwards most of the students who opt this route will find their H1B will be more a ‘mirage’?

  6. Vinod Chandra

    If this happens great it will be great news for lots of us, but Just One Question: H1B is the permission to work for a particular Job, How is the Job going to be on a waiting list? Jobs are time bound, why the same employers hold the post until next H1B quota opens?

    1. Sunny

      You are correct vinod. I think this will be the main point judge focuses while deciding. And in the mean time there will be many changes coming in the H1B program. Got new news that senator Grassley is proposing a reform which mostly passes in house as this will be backed by Jeff Sessions(AG pick).

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