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