"Playing" the lottery to work in the U.S.

For the last four years, the employer demand for H-1B petitions, a popular visa for highly skilled workers, has far exceeded supply. As a result, the U.S. Citizenship and Immigration Service (USCIS) has implemented an annual lottery system, a random computer generated lottery which selects “winners”, i.e., those employers and employees who will receive the benefit of an H-1B work visa.

For the first time, a federal lawsuit seeks to challenge the annual H-1B lottery system. Tenrec, Inc. v. U.S. Citizenship & Immigration Servs. , 2016 BL 312928, D. Or., No. 3:16-cv-00995 (September 22, 2016). The lawsuit claims that under federal law, the USCIS is required to process applications on a first-come, first-served basis, as opposed to the current lottery based system which can result in countless years of rejection for the H-1B visa.

On September 22, 2016, a decision by Judge Michael H. Simon of the U.S. District Court for the District of Oregon denied the USCIS’s attempt to dismiss the case. Judge Simon’s decision addresses the injury sustained not only by H-1B workers, but also the injury to the employer seeking to hire the highly skilled worker.

Should the case ultimately succeed, what will replace the current lottery system? The H-1B visa is an extremely popular visa among the leading technology giants who seek large volumes of H-1B visas each year in order to meet their need for highly skilled technology workers. How will the small employer seeking sponsorship of only one H-1B worker compete with those seeking multiple H-1B petitions?

The Tenrec, Inc. decision states that a “priority date” system should be implemented, meaning that petitions may be considered in subsequent years as visas become available. Although, in theory, this sounds like a nice idea, just how these priority dates will be assigned, in practice, will be an extremely challenging task. It’s not as though USCIS can simply time-stamp H-1B filings as they are received at the USCIS Service Centers. Much thought will need to be given to how such a priority date system would work.  

Given the potential for years of rejection under the current lottery system, one may have a better outcome by filing for U.S. Permanent Residency through employer sponsorship. This alternative undermines the notion that the H-1B is technically a “temporary” work visa, allowing employers to fulfill temporary labor shortages.

It would appear that the most practical solution would involve increasing the annual H-1B cap/quota, as well as creating addition exemptions from the H-1B cap/quota for certain critical positions, such as those that substantially benefit U.S. national interests, or those which an employer cannot fill after extensive recruitment efforts. The statutory exemptions from the H-1B cap for qualifying non-profit organizations should be expanded to address the arbitrary nature of the lottery system that adversely affects employees and employers alike. There does not, however, appear to be a remedy in the foreseeable future.

This post was contributed by Dina J. Sakita, Senior Counsel at Madison | Piper PC.