Is the game still worth the candle (or the visa)? How the H-1B visa lottery lawsuit illustrates the need for immigration reform.

Author:Callan, Emily C.
 
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  1. INTRODUCTION

    For many immigration attorneys, U.S. companies, and foreign nationals, April 1 is one of (if not the) most stressful days of the year. (1) Aptly known as "April Fools' Day" to the rest of the nation, April 1 has become one of the busiest, most taxing, and comically challenging days in the practice of immigration law. The reason this otherwise innocuous day brings forth so much anxiety is because every year on April 1, the U.S. government opens what has become known as the "H-1B Visa Lottery"--arguably the worst game ever invented by our government in the history of our country. (2)

    The H-1B Visa Lottery is the mechanism employed by the U.S. government (through its agency, the U.S. Citizenship and Immigration Services ("USCIS")) to allocate the 65,000 H-1B visas that are available to foreign nationals every fiscal year. (3) The H-1B visa is exceedingly popular because it provides foreign nationals who possess a bachelor's degree or equivalent with temporary authorization to work in the United States for a specific employer for a period of up to six years. (4) Due to its popularity and relatively easy eligibility requirements, significantly more than 65,000 H-1B petitions are filed nearly every year. (5) In fact, in the last three years alone, USCIS received more than 100,000 H-1B petitions during the first five business days in April--almost double the amount available for that year. (6)

    Since the demand for H-1B visas clearly and continuously well exceeds the supply, USCIS conducts a lottery wherein the agency arbitrarily and randomly selects the number of petitions it predicts will be enough to fill the aforementioned quota. (7) The agency has not provided the public with information on exactly how it conducts this lottery. (8) The remainder of the unlucky petitions that are not selected are returned to the U.S. companies who filed them. (9) Then the companies and the foreign nationals begin the year-long wait until the following April 1 when they are eligible to resubmit the petitions and hope they win big in the lottery their second (or third or fourth) time around. (10)

    To the casual onlooker, the H-1B Visa Lottery probably doesn't seem that bad. After all, it ostensibly provides each employer (referred to as "the petitioner") with a fair shake at having their prospective foreign national workers selected for the temporary employment visa. (11) However, as explained in more detail in subsequent discussions in this article, the H-1B Visa Lottery has become less and less "fair," as companies and immigration law practitioners alike have conceived of savvy ways to heighten their chances of having USCIS select and approve their petitions. (12)

    The frustrations caused by the H-1B Visa Lottery have long and loudly been bemoaned by employers, foreign nationals, and immigration attorneys. (13) However, recently, a number of affected persons have decided to take their grievances to the court. In June 2016, a class-action lawsuit was filed in the United States District Court for the District of Oregon, challenging the legal basis for USCIS to conduct an H-1B Visa Lottery at all. (14) According to the law firm that filed the case, the lawsuit's purpose (among others) is to allow the companies, whose H-1B petitions are not selected in a given year, to resubmit their applications in the following year and enjoy preferential treatment in that next year's lottery in the form of a reserved place in line, ahead of those who are filing an H-1B petition for the first time. (15) As discussed in greater detail below, this seemingly innocent request would shake the H-1B Visa Lottery system to its very core and dramatically alter the way these visas are allocated and awarded each year. (16)

    The national media discussed or referenced H-1B visas very frequently during the 2016 election cycle, as immigration continues to be a hot-button issue for the country as a whole. (17) However, the media coverage rarely provided an in-depth explanation of this particular visa, its parameters and requirements, or how it functions within the context of employment-based immigration law and policy in the United States. (18) Due to this routine lack of information that is disseminated about this critically important topic, a closer examination of the H-1B Visa Lottery lawsuit is clearly warranted.

    To do so, Part II provides an in-depth explanation of the H-1B visa and its lottery system. Part III examines the H-1B Visa Lottery lawsuit and discusses the legal reasoning behind the court challenge. Part IV posits the likely benefits and disadvantages that would result from the lawsuit's success, and discusses the substantive changes that would be implemented to the H-1B framework. Part V provides alternative solutions that may be put forth by both Congress and USCIS to cure the ills caused by the H-1B Visa Lottery outside of the relief sought in the lawsuit at issue in this article. Finally, Part VI offers a conclusion.

    The H-1B visa program provides excellent opportunities for U.S. employers to attract foreign talent and to put that talent to use in businesses across the country in order to improve the nation's economy as a whole. (19) Hospitals, schools, large-scale software development companies, technology consulting firms, and financial institutions represent just a small number of companies that routinely sponsor foreign nationals for H-1B visas. (20) However, these opportunities are frustratingly compromised and constrained due to the existing arbitrary process utilized by USCIS to abide by the regulatory cap on the amount of H-1B visas that may be issued each year. (21) By looking to the precise language of the immigration law and regulations governing this visa category, coupled with a commonsense balance of the needs of U.S. employers against the extant immigration framework, the federal government can surely arrive at a better system for allocating these visas that effectively and fairly fulfills the longstanding need for comprehensive and realistic immigration reform.

  2. PICKING NUMBERS AND BUYING THE TICKET: A PRIMER ON THE H-lB VISA AND LOTTERY

    The Immigration and Nationality Act of 1990 created both the H-1B isa and its cap of 65,000 visas per fiscal year. (22) Then in 1999, the annual cap was increased to 115,000 as a result of new provisions in the American Competitiveness and Workforce Improvement Act. (23) The cap was again increased to 195,000 in 2001 by the American Competitiveness in the Twenty-First Century Act, before being reduced back to 65,000 in 2004. (24) That same year was the inaugural year that added 20,000 more visas specifically reserved for foreign nationals who earned master's degrees from an accredited public or private non-profit U.S. university. (25) The numerical cap remains unchanged since 2004. (26)

    As briefly touched upon above, the H-1B visa is a temporary (or "nonimmigrant") work visa that allows the foreign national to work for the U.S. employer that filed the petition on the national's behalf. (27) Eligibility for an H-1B visa is twofold. First, the job offered to the foreign national must qualify as a "specialty occupation." (28) According to the USCIS regulations, a specialty occupation is one that normally requires a bachelor's degree, or its foreign equivalent, in order to perform the occupation's job duties. (29) While it may be commonsense knowledge that some positions require at least a bachelor's degree, such as a physician, CEO, or accountant, USCIS frequently doubts the veracity of a specialty occupation claim for positions such as programmer analyst, store manager, or chef. (30) Therefore, every H-1B petition must include proof, or at least an explanation, to confirm that the position in question in fact qualifies as a specialty occupation. (31)

    The second requirement is that the foreign national must possess all of the qualifications necessary to perform the job duties of the specialty occupation through his or her education, work experience, or a combination of these credentials. (32) To prove this eligibility, each H-1B petition must include copies of the foreign national's degrees, transcripts, and/or work experience letters along with a detailed explanation of how these credentials equip the national with the skills and knowledge needed to perform the job duties of the specialty occupation. (33)

    The USCIS adjudication officer may question any aspect of an H-1B petition, but most frequently calls into question one or both of these requirements. (34) When an officer does not believe that a position qualifies as a specialty occupation or that the foreign national is qualified to perform the job duties, the officer will issue a formal "Request for Evidence" to the petitioning employer. (35) This Request will inform the employer of the petition's deficiencies and instruct the employer on what forms of evidence USCIS will accept in order to issue an approval for the case. (36)

    To request an H-1B visa, employers must complete a Form 1-129 "Petition for Nonimmigrant Worker" and file this petition, along with the supporting documentation and applicable fees, with the correct USCIS service center with jurisdiction over the employer. (37) As stated above, in order to be considered in the H-1B Visa Lottery, the employer should file the petition and ensure delivery to USCIS during the first five business days in April. The regulations require USCIS to accept H-1B petitions during these first five days, no matter how many petitions it receives on April l. (38) Thus, delivery on April 1 is not strictly required but has become the standard practice in immigration law because it is the first day the H-lB cap opens. (39) It is worth noting, however, that even though the cap opens on April 1, the H-lB winners will not actually take up their H-lB status until October 1, which is the start of the fiscal year. (40) April 1 became the start date for the H-lB Visa Lottery because...

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