Transparency in U.S. H-1B Visa Lottery Lawsuit

Two top immigration-related advocacy groups have recently filed a lawsuit against the U.S. Department of Homeland Security and U.S. Citizenship and Immigration Services (USCIS) seeking information about the governments’s administration of the H-1B visa lottery. The two groups, the American Immigration Council (Council) and the American Immigration lawyers Association (AILA), filed the lawsuit under the Freedom of Information Act, claiming USCIS has never been forthcoming in describing the selection process.

H-1B visas are non-immigrant visas that allow highly skilled foreign nationals with a U.S. bachelor’s degree (or its equivalent or higher) to live and work in the United States for increments of three years to fill specialized job positions. These visas are highly sought after for IT professionals, especially those from India.

Every year, U.S. employers submit petitions to USCIS on the first business day of April for the limited pool of H-1B non-immigrant visa numbers that are available for the upcoming fiscal year.

“It is as if they disappear into a “black box,”” says Melissa Crow, Legal Director of the American Immigration Council. “This suit is intended to pry open that box and let the American public and those most directly affected see how the lottery system works from start to finish, and to learn whether the system is operating fairly and all the numbers are being used as the law provides.”

With an annual limit of 65,000 visas for new hires – and 20,000 additional visas for professionals with a master’s or doctoral degree from a U.S. college or university – employer demand for H-1B visas has exceeded the statutory cap for more than 10 years now.

If USCIS determines at any point in time during the first five business days of the filing period that it has received more than enough petitions to meet the limits, it uses a computer-generated random selection process (also known as a “lottery”) to select a sufficient number of H-1B petitions to satisfy the limits. Petition not selected are returned to the petitioning employers.

“Despite the Obama Administration’s public commitment to the values of transparency and accountability, frankly, our attempts to see into this process have been resisted,” says AILA Executive Director Benjamin Johnson. “This litigation is intended to shine a necessary light on an important process in America’s business immigration system.”

See the website of John J. Hykel.