SEPTEMBER 2016
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Immigration

Two Lawsuits Challenge the Government’s H-1B Lottery System

Dilip Patel

By DILIP PATEL

Recently, two lawsuits have been filed in federal district court challenging various aspects of the H-1B lottery system. The first case is a class action filed in the U.S. District Court for the District of Oregon against U.S. Citizenship and Immigration Service (USCIS) and alleges that the randomized lottery system used to select a limited number of H-1B petitions for processing is “arbitrary and capricious.” The suit asks the court to hold unlawful and set aside USCIS’s regulations that require H-1B petitions to be filed during a five-day filing window and subjecting them to a random lottery in which losing lottery filings are rejected and not assigned a priority date. The case asserts that USCIS should be issuing receipts and priority dates for all cases because there is no statutory basis for the agency to require a filing window, a random lottery, and a rejection system. Indeed, the plain language of the statute requires that H-1B petitions be processed in the order in which petitions are filed. Plaintiffs argue that an orderly priority date assignment system and waiting list should be established similar to the system in place for immigrant visa petitions. The current regulatory system results, says plaintiffs, in a potentially never-ending game of chance for petitions filed during the window each year, with some unlucky individuals trying and failing each year to obtain an H-1B number, while some lucky lottery winners obtain a visa number in the very first year a petition is filed on their behalf. The plaintiffs ask the court to order defendants (USCIS) to assign priority dates to improperly rejected H-1B petitions that are resubmitted for acceptance by members of the class; order USCIS to accept H-1B petitions throughout the year and assign priority dates; and make H-1B numbers available based on the order in which they are received. In the past four years, almost 500,000 cases have been rejected.

The second lawsuit filed against DHS and USCIS seeks declaratory, injunctive, and other appropriate relief under the Freedom of Information Act to obtain information so that the public has a clear understanding of USCIS operating procedures and policies when administering the H-1B lottery. The suit was filed by a private law firm, the American Immigration Council (Council), and the American Immigration Lawyers Association (AILA). It alleges that USCIS has never been forthcoming in describing the selection process. The suit is intended to let the American public and those most directly affected see how the lottery system works from start to finish, in order to learn whether the system is operating fairly. Despite the government’s stated commitment to transparency and accountability, prior attempts to learn more about how the H-1B lottery process is conducted have been resisted.

Three-Month Wait Times for NIV Appointments at U.S. Consular Posts in India

U.S. consular posts in India are currently experiencing extraordinary wait times for nonimmigrant visa (NIV) interview appointments as a result of increased demand. As of early June, the current wait times for all NIV categories other than B, F, and J are: Chennai, 75 days; Hyderabad, 93 days; Kolkata, 96 days; Mumbai, 88 days; and New Delhi, 100 days. Unfortunately, backlogs are likely to continue, if not worsen, during the busy summer months.

DOS reports that demand for visas to travel to the United States has increased by 80 percent in the past five years; more than one million visa applications were adjudicated during the last fiscal year alone. While additional consular positions are being requested to alleviate the increase in visa wait times, foreign nationals should consider deferring unnecessary travel to India until after the backlogs have subsided. When travel is essential, be prepared for lengthy delays in the scheduling of visa interviews.

Foreign nationals who must travel to obtain a visa now should be mindful that:

USCIS Permits Biometrics Collection Abroad, But Only in Rare and Compelling Circumstances

USCIS will now permit biometrics to be collected abroad in certain “rare” and compelling circumstances. Biometrics collection for certain applications, such as Form I-131 (Application for Reentry Permit), may be taken at a USCIS office abroad, even if the collection was originally scheduled at an ASC office in the United States. This is available to residents of countries where USCIS has an international office.

To qualify, applicants must prove that extenuating circumstances required them to depart the U.S. before the scheduled biometrics appointment in the U.S. For example, the applicant may have been granted a job transfer on short notice or may need to assist a seriously ill family member living abroad. Applicants must also show that a request was made to either expedite or reschedule the biometrics appointment at an ASC before leaving the United States, or explain why they failed to do so. Contact information for each individual USCIS international field office (IO) can be found online, and applicants should e-mail the appropriate office to request the appointment and explain why the circumstances are rare and extenuating.

USCIS IOs will not grant an overseas biometrics appointment merely to avoid the expense of traveling back to the United States for a domestic ASC appointment. The USCIS IO field offices have extremely limited capacity to collect biometrics abroad and can only handle a limited number of appointments. As such, it is best for clients to have biometrics taken while in the United States. However, if extenuating circumstances arise and the applicant resides in a country with a USCIS office, a request for biometrics abroad may be submitted to the local USCIS international field office.

Dilip Patel of Buchanan Ingersoll & Rooney PC, a board-certified expert on immigration law, can be reached at (813) 222-1120 or email dilip.patel@bipc.com

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