Lawsuit Filed Against H-1B Visa Lottery Moves Ahead


If you want to get a visa to bring a skilled worker over from abroad, you will face entering an H-1B visa lottery.

If you fail to secure a visa, most employers simply enter again next time. However, two employers, and two workers who were not selected in the cap have filed a lawsuit against the H-1B lottery.

Their lawsuit was filed as a class action, a procedure that allows a number of individuals to file one lawsuit.

On September 23, a federal judge in the case rejected the arguments put forward by United States Citizenship and Immigration Services (USCIS). He indicated the case will move forward.

Visa application

Those opposed to the H-1B visa lottery claim it is unfair. They say some individuals and companies are filing multiple petitions for the same potential worker, or persuading several companies to apply for an H-1B visa for the same candidate.

The litigants claim some companies are applying year after year and failing to win in the H-1B lottery. Others are getting a visa on the first attempt. This can result in some individuals applying year after year and not obtaining an H-1B number and others receiving it on the first attempt. A number of issues resulted in demands to eliminate the lottery system.

The lawsuit is filed in the U.S. District Court for the District of Oregon. It claims the lottery system runs counter to statutory law and has numerous inherent problems, reported The National Law Review.

The lawsuit argues for a change in the system. It says USCIS should provide priority dates to H-1Bs and process the visas in the order applications are received.

Alternative Approaches to the H-1B Visa Lottery

Alternative approaches to the H1-B visa lottery include:

  • Increasing the H-1B cap.
  • Creating an H-1B exemption for workers from STEM fields.
  • Linking the number of H-1B visas to demand in the U.S. economy.
  • Exempting those with a master’s degree from the cap. At present, an additional 20,000 spots are made available every year for those who hold advanced degrees.

You can read more about specialty occupation visas on our website. You can usually qualify to enter the H-1B lottery if the job requires a bachelor’s degree or higher. There are a number of qualification. These include proving the complex nature of the job by highlighting parallel positions that require a degree or by pointing to other similar positions in the firm that required a degree.

Fields that require highly specialized knowledge include architecture, IT skills.  Engineering, mathematics, medicine, law, academia and biotechnology are other areas.

If you want to find out more about H1-B visas or need help applying for one, please call our Austin immigration lawyers at  (512) 399-2311.

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