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Federal Judge Refuses to Dismiss Class Action Regarding H-1B Lottery

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Tenrec, Inc. et al v. US Citizenship and Immigration Services et al

On Thursday September 22, 2016 an Oregon federal judge threw out United States Citizenship and Immigration Services’ (USCIS) Motion to Dismiss a class action lawsuit against the agency regarding the H-1B Cap lottery. The federal judge held that the suing businesses and their would-be H-1B recipient employees had standing to bring their claims.

Background:

On June 2, 2016, a class action lawsuit was filed against USCIS to end the current random lottery process for H-1B cap petitions, which are currently required to be filed in a 5 day window beginning on April 1st and are randomly selected without regard to order of filing in previous years.  Those suing are advocating that USCIS allow those with rejected H-1B petitions the opportunity to re-submit petitions and receive a place in line ahead of those who file for the first time at a later date.  This remedy would provide “priority” for next fiscal year’s H-1B numbers to those who had filed for an H-1B this year, or in previous years, and were not selected in the random lottery.  In response to the lawsuit, USCIS had filed a Motion to Dismiss the case, which the federal judge threw out.

Implications:

  • The case may go to trial and there exists the possibility that the Federal District Court could rule against USCIS. A ruling against USCIS could lead to significant changes to the H-1B Cap lottery system.
  • If implemented, changes that prioritize those who had previously filed for the H-1B Cap would make it easier for those applicants to eventually be selected in the lottery.

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