NEW YORK: The fate of the H-1B visa lottery for 2017, which begins on April 1 – and likely would be open for five business days – is at risk of being blocked, as plaintiffs in a putative class action lawsuit in Oregon have called for changes to the system and not let it go on this year, until the judge sitting on the case gives his verdict in the case.
The plaintiffs, Walker Macy LLC and others, have petitioned for changes to the randomized lottery system for H-1B visas. On Wednesday, they asked an Oregon federal judge Michael H. Simon, to block the U.S. Citizenship and Immigration Services (USCIS) from distributing the visas in the next lottery until the court issues a decision in the case.
The proposed class of petitioners for H-1B visas, which are for highly skilled foreign workers, urged the court to grant a preliminary injunction to prevent the agency from distributing the visas in the randomized lottery, reported Law360.
Last year, in September, Judge Simon had refused to dismiss the case as requested by the USCIS.
He also shot down the government’s contention that the individual plaintiffs fell outside the zone of interests protected by the relevant section of the Immigration and Nationality Act because the statute is designed to protect American workers and employers, not foreign workers. Judge Simon said even if there is doubt that the INA protects the interests of nonimmigrant beneficiaries, he is giving the individual plaintiffs the benefit of the doubt, reported Law360.
USCIS had also argued that the two businesses lacked standing because they failed to sufficiently plead an injury, but the judge disagreed with that as well, saying the business’ allegations — namely, that the government’s current system, which forces people not selected in one year’s lottery to apply again the next year with no priority status, is arbitrary and capricious — have been adequately pled.
The suit had been filed by Portland, Oregon, companies Tenrec Inc. and Walker Macy LLC in June, 2016, two months after USCIS said the number of H-1B petitions reached a record high for the second straight year. The H-1B visa is for highly skilled foreign workers.
Last year, USCIS received more than 236,000 H-1B petitions for skilled foreign workers in the week after opening the application filing period. In any given year, the agency can accept 65,000 applicants maximum for its general category of H-1B visas and an additional 20,000 applicants who hold master’s degrees or higher from a U.S. institution.
Regardless of how many times a petitioner has applied for an H-1B visa in previous years, those applicants who are not selected through a random lottery in the five-day window in which the agency opens up the application period starting April 1 must wait until the following year to reapply, in hopes they might be selected in the next lottery.
Tenrec, a web development and management agency, had filed an H-1B petition this year on behalf of Ukraine citizen and lead developer Sergeii Sinienok. Walker Macy, a landscape architecture, urban design and planning firm, had filed a petition on behalf of landscape designer Xiaoyang Zhu.
The proposed class action seeks to represent petitioners of H-1B visas as of April 1, 2013, whose applications were rejected and did not receive a priority date because they were not one randomly selected during the lottery, reported Law360.