Academic journal article Albany Law Review

Is the Game Still Worth the Candle (or the Visa)? How the H-1B Visa Lottery Lawsuit Illustrates the Need for Immigration Reform

Academic journal article Albany Law Review

Is the Game Still Worth the Candle (or the Visa)? How the H-1B Visa Lottery Lawsuit Illustrates the Need for Immigration Reform

Article excerpt

I. INTRODUCTION

For many immigration attorneys, U.S. companies, and foreign nationals, April 1 is one of (if not the) most stressful days of the year. (1) Aptly known as "April Fools' Day" to the rest of the nation, April 1 has become one of the busiest, most taxing, and comically challenging days in the practice of immigration law. The reason this otherwise innocuous day brings forth so much anxiety is because every year on April 1, the U.S. government opens what has become known as the "H-1B Visa Lottery"--arguably the worst game ever invented by our government in the history of our country. (2)

The H-1B Visa Lottery is the mechanism employed by the U.S. government (through its agency, the U.S. Citizenship and Immigration Services ("USCIS")) to allocate the 65,000 H-1B visas that are available to foreign nationals every fiscal year. (3) The H-1B visa is exceedingly popular because it provides foreign nationals who possess a bachelor's degree or equivalent with temporary authorization to work in the United States for a specific employer for a period of up to six years. (4) Due to its popularity and relatively easy eligibility requirements, significantly more than 65,000 H-1B petitions are filed nearly every year. (5) In fact, in the last three years alone, USCIS received more than 100,000 H-1B petitions during the first five business days in April--almost double the amount available for that year. (6)

Since the demand for H-1B visas clearly and continuously well exceeds the supply, USCIS conducts a lottery wherein the agency arbitrarily and randomly selects the number of petitions it predicts will be enough to fill the aforementioned quota. (7) The agency has not provided the public with information on exactly how it conducts this lottery. (8) The remainder of the unlucky petitions that are not selected are returned to the U.S. companies who filed them. (9) Then the companies and the foreign nationals begin the year-long wait until the following April 1 when they are eligible to resubmit the petitions and hope they win big in the lottery their second (or third or fourth) time around. (10)

To the casual onlooker, the H-1B Visa Lottery probably doesn't seem that bad. After all, it ostensibly provides each employer (referred to as "the petitioner") with a fair shake at having their prospective foreign national workers selected for the temporary employment visa. (11) However, as explained in more detail in subsequent discussions in this article, the H-1B Visa Lottery has become less and less "fair," as companies and immigration law practitioners alike have conceived of savvy ways to heighten their chances of having USCIS select and approve their petitions. (12)

The frustrations caused by the H-1B Visa Lottery have long and loudly been bemoaned by employers, foreign nationals, and immigration attorneys. (13) However, recently, a number of affected persons have decided to take their grievances to the court. In June 2016, a class-action lawsuit was filed in the United States District Court for the District of Oregon, challenging the legal basis for USCIS to conduct an H-1B Visa Lottery at all. (14) According to the law firm that filed the case, the lawsuit's purpose (among others) is to allow the companies, whose H-1B petitions are not selected in a given year, to resubmit their applications in the following year and enjoy preferential treatment in that next year's lottery in the form of a reserved place in line, ahead of those who are filing an H-1B petition for the first time. (15) As discussed in greater detail below, this seemingly innocent request would shake the H-1B Visa Lottery system to its very core and dramatically alter the way these visas are allocated and awarded each year. (16)

The national media discussed or referenced H-1B visas very frequently during the 2016 election cycle, as immigration continues to be a hot-button issue for the country as a whole. (17) However, the media coverage rarely provided an in-depth explanation of this particular visa, its parameters and requirements, or how it functions within the context of employment-based immigration law and policy in the United States. …

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