Judge dismisses USCIS’ plea to dismiss the lawsuit.
A proposed class action lawsuit to make changes to the controversial and opaque H-1B lottery system used by the United States Citizen and Immigration Services (USCIS) under the aegis of the Department of Homeland Security to grant 85,000 work visas annually has been cleared to move forward after an Oregon federal judge refused the US government’s plea to dismiss the case.
U.S. District Judge Michael H. Simon rejected on Thursday the USCIS’ plea to dismiss argument that as mere visa petition beneficiaries, the individual plaintiffs lacked Article III standing to bring their claims, and allowed the case to proceed, reported Law360.
Entry Law reported Judge Simon set a hearing for December 19, 2016, to reach a verdict.
It noted that an employer or employee who has failed to be selected in at least one lottery since 2013, including this year, may complete a form to review the facts of their case for potential class membership. Some class members have also offered to provide declarations to support the lawsuit as a class action.
The purpose of the lawsuit is to allow those with rejected H-1B petitions the opportunity to re-submit petitions and receive a place in line ahead of those who file for the first time at a later date. This remedy would provide ‘priority’ for next fiscal year’s H-1B numbers to those who had filed for an H-1B this year, or in previous years, and were not selected in the random lottery, noted Entry Law.
In the case, Tenrec, Inc. v. USCIS, employers and employees have sued the government to end the current random lottery process in place for H-1B cap subject petitions, which are at present required to be filed in a 5 day window and randomly selected without regard to order of filing in previous years.
The class action complaint was filed June 2, 2016.
Currently, USCIS gives 65,000 H-1B visas to foreign workers, and an additional 20,000 H-1B visas to foreign graduates with an F-1 visa, from accredited US educational institutions.