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.
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.
Update I had posted on Feb 10 is incorrect. Lawsuit is still active and waiting for a decision from the Judge. Thanks to Brent for updating us with the latest news (and correcting the my misunderstanding).
Update – March 8, 2017
Plaintiffs filed a motion for preliminary injunction. If granted, then USCIS would not be allowed to be conduct H1B Visa Lottery until a outcome/decision on the case.
Update – Mar 17, 2017
USCIS/DHS won the case. Result – Lottery Process is expected to continue as expected. This concludes the update on this lawsuit. Unless the Attorneys decide to appeal the case in higher court.