Increasing scrutiny on lottery system, lack of transparency.
AB Wire
The H-1B visa lottery system is under increasing attack for lack of transparency and even violation of existing laws governing it: following the lawsuit last month by two business immigration groups which wanted the US government to produce documents showing how the visa distribution process works, now two private firms have filed a lawsuit in Oregon because their candidates they were sponsoring failed to get visa.
Last month, the lawsuit was filed by the American Immigration Lawyers Association (AILA) and the American Immigration Council (AIC), and follows a Freedom of Information Act request for documents. They claim the government withheld many documents and heavily redacted others.
Now, the lawsuit by the two firms in Oregon says there is “no legal justification” for the visa lottery and wants it replaced by a system that issues H-1B visas in the order they are received, reported ComputerWorld.
This complaint, filed in U.S. District Court in Oregon, is brought by Tenrec Inc., a web development firm. It had filed a visa petition for a citizen of Ukraine for the position of lead developer. A second company, Walker Macy LLC, a landscape architecture, urban design and planning firm, filed a petition to hire a citizen of China for a position as landscape designer. Neither visa candidate won the most recent lottery.
The law requires visas to be issued in “an orderly filing system and process of issuing visas in the order in which petitions are filed, and not a random lottery process,” their attorney, Brent Renison at Parrilli Renison, wrote in the lawsuit. The law firm is based in Portland, Ore.
The lawsuit argues that the U.S. Citizenship and Immigration Service (USCIS) acted illegally, or outside the intent of Congress, when it created an H-1B visa distribution system based on chance. The system is being gamed by large firms at the expense of smaller companies, the plaintiffs argue. They are seeking class action status.
Under the H-1B program, employers sponsor a worker and apply for the visa. The U.S. received 236,000 H-1B petitions this year for the 85,000 visas allowed under the current cap, which includes 20,000 for foreign students graduating from accredited US universities. A computer-generated lottery is used to distributed the visas, meaning the odds of actually getting a visa are roughly one-in-three.
One concern is that the system can be skewed if larger companies like IT outsourcing firms submit more visa petitions than the need. Visa-seeking job candidates may also be seeking multiple employer sponsors, but it’s difficult know to what extent either demand or desperation drives up the annual petition count, reported ComputerWorld.
Replacing the lottery with a system based on when a visa petition is filed means that if a petitioner doesn’t get a visa the first time around, that request would move up the list the next year. The lawsuit also asks the court to allow visa petitioners to file for visas throughout the year, not just beginning on April 1.
The plaintiffs are seeking a summary judgment, or quick action by the court to remedy their complaint before a trial. If the summary judgment motion succeeds, the USCIS could be forced to put an end to the lottery in time for the Fiscal Year 2018 visa distribution.
The lottery system was established by regulation, and didn’t include enough protections to keep it from being abused. The USCIS “did not prohibit multiple filings by different employers on behalf of the same individual, or bar large companies from multiple filings through different business units,” it says, in part.
“This situation is unfair to small businesses, and is not the result intended by Congress when the statute was enacted,” according to the lawsuit’s summary judgment motion.
2 Comments
For the past decade the Programmers Guild has advocating abolishing the Lottery, replacing it with a system that gives priority to the highest skilled applicants. Presuming that higher skilled are paid a higher salary, USCIS should accept applications for a month, then sort them by salary and award H-1b to the top 85,000. This would protect U.S. new grads from displacement at the entry-level (H-1b are predominately entry-level prevailing wage classification) and assure that any top-skilled applicant could get approved by offering an appropriate salary.
Hopefully Trump will stop the massive influx of foreign visa guest workers who are taking US citizens jobs; which has led to the failure of US States and the complete economic collapse we are now witnessing. There is no STEM education weakness as Americans held these stolen jobs and trained their mostly Indian replacements!
Hiring only foreign workers is discrimination at its worst. The US corporations should admit to all the outsourcing of jobs they’ve done to India or to H-1b guest workers after firing their American staff.