Another H-1B Lawsuit, but this time claiming the Lottery is Illegal

Unknown.jpegA law firm has recently brought a lawsuit against USCIS claiming that the H-1B lottery system currently being used by USCIS (USCIS will accept applications for the first five days of April, conduct a lottery for the number of applciations that they think is sufficient to fill the quota, and then reject the remaining applications AND not accept any new filings until the next fiscal year) is illegal.

The law firm bringing this suit claims that the lottery system runs afoul of INA Section 214(g)(3) which states “Aliens who are subject to the numerical limitations of paragraph (1) shall be issued visas (or otherwise provided non-immigrant status) in the order in which petitions are filed for such visas or status.” This same type of language is used when the INA discusses immigrant visas as well, and in that context USCIS will accept I-140’s (the application you file to claim that you qualify in an employment based immigrant visa category) at any time.  If there are no immigrant visas left in the category in which the person filed, they cannot file the I-485 (the application to adjust your status from a non-immigrant to a permanent resident), and, instead, are put in line by order of the date the application was received.  The law firm claims that this is how USCIS should handle H-1Bs as well – accept them throughout the year and place applications filed after the cap has been met in line for next years cap.

Is this a good idea?  Bad idea?  Will the lawsuit be successful?  I cannot necessarily answer all these questions.  But I will try to give my opinion on this lawsuit and what is the most likely result below.

I think USCIS will have two possible arguments in this case.  First, they will argue that, the I-129 filing, unlike the filing made for an I-140 (for an employment based immigrant visa) or an I-130 (for a family based immigrant visa), is actually a combination of two requests:  First, the I-129 is asking USCIS to find that the position and beneficiary qualify for an H-1B visa (this is similar to the I-140 and I-130, but for the H-1B) AND to change your status from another non-immigration status to H-1B (or extend your H-1B).  Filing the I-140 or I-130 does not affect your status in the US and does not provide you any benefits, in order to stay in the US and get work authorization and, ultimately, the green card, you need to file the I-485 application (adjustment of status), which you can only file if there is an immigrant visa available.  Filing the I-129 allows you to stay in the US while the application is pending if you are requesting a change or extension of status. While I do agree with USCIS that the I-129 is different than the I-140 and I-130 in this regard, ultimately I think that this argument will fail.

The problem with this argument is that USCIS can easily break out these two requests into separate forms.  In fact, USCIS already has a form for changing or extending your status (the I-539) and actually use to require that this application be filed in addition to the I-129 if you wanted a change or extension of status.   For this reason,  I do not think that the Courts would agree with this argument.

A second argument that USCIS could make is that the language in the statute is not clear and unambiguous.  Sure, it is clear that applications need to be considered in the order in which they were received, but it is not clear in terms of how this should be handled.   While the method put forth by the plaintiff (the party who brought the lawsuit) is a reasonable interpretation of this, so is USCIS’s arrangement.  It is also reasonable for USCIS to treat non-immigrant and immigrant visas differently even though the same language is present for both of them.  Non-immigrant visas are inherently time sensitive, a company files for an H-1B when it is needed, not 2  or 3 or more years in advance.  Green cards, on the other hand, while certainly wanted by Beneficiaries as quickly as possible, are not as time sensitive.  Therefore, USCIS will argue, the methods we use in each case are appropriate to that case type.  It is much harder to say whether the Court will agree with this argument or not, but even if they agree with USCIS I think the Courts would most likely still change the lottery system for the worse.

If the Court agrees with USCIS on the above argument, they could just dismiss the lawsuit and be done with it.  However I am very concerned that, in fact, they may agree with USCIS but also find that the petitioners make a valid argument about the current lottery system as well.  This is possible because the statute is very clear that applications need to be adjudicated in the order that they are received.  Under the current lottery system USCIS is not doing this.  Instead, they are grouping the first 5 business days worth of H-1Bs together and conducting a lottery on all of them.  Reconciling that approach with the statute would be difficult.  I think that the Court may require them to treat each day separately.  What would this mean?  Most likely that, instead of having the first 5 business days to file your H-1B, you would have to make sure that it is received by USCIS on the first business day that the H-1 B cap opens (April 1).

In my opinion, therefore, there are three possible outcomes:  1) the Courts dismisses the case and everything stays as it is; 2) The Court overturns the current policy and agrees fully with the Plaintiffs – meaning that we have a new system whereby you can file for the H-1B at any point in the year and USCIS simply keeps track of the applications via a priority date method; and, 3) the hybrid approach – finding that the current lottery system is impermissible only to the extent that it allows applications filed on different days to be treated the same – leading to a one day filing window as explained above.

Of these three possible outcomes, I see the third one, which is, in my opinion, the worst outcome, as the most likely.  The other two possibilities I think have an even chance of success. If the Court agrees with the Plaintiffs (outcome 1) above) I do think USCIS will separate out the I-129 from the change of status application.  This means that two applications would have to be filed (each with a separate filing fee):  First, the I-129, which would determine if you qualify for an H-1B; Second, the I-539 when an H-1B is available.  This would mean that, unlike now, just filing the I-129 would not automatically allow you to stay in the US while USCIS adjudicates that application.  It would be the filing of the I-539 that would allow you to stay in the US.  I do also feel that this would not be a great outcome. Under the current system, while it is possible to not be selected in any given year, you can always try again the next year.  This gives individuals and companies some ability to plan ahead. Under this new system, the backlog could easily become years long in a matter of a month or two.  This would not help individuals or businesses.  It would really help no one.

In conclusion while I, like the attorney bringing this suit, feel that the H-1B system is broken, I feel that the results of this lawsuit can do nothing other than make the system even worse.  I do believe that ultimately, the attorney bringing this suite feels that it will force Congress to increase the number of H-1Bs to prevent the years long wait for an H-1B. However, right now, our government is so dysfunctional that I do not think that Congress could get together to pass any immigration bill in the foreseeable future.  Therefore I see nothing good coming out of this lawsuit at all.

If you have any questions leave a comment below or send me an email.  Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.


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