Visa Crunch

Applicants for H-1B visas file a lawsuit contesting the lottery selection procedure

On 28th June 2021, a group of over 500 Indian and Chinese citizens filed a complaint against the US Department of Homeland Security, contesting the H-1B non-immigrant visa selection procedure based on a lottery. The petitioners had all applied for an H-1B visa for FY2022 but were not elected by a random lottery. 

All of the petitioners have employment offers from American employers, and a number of them are currently working in the US on an F-1 Optional Practical Training (OPT) visa, which allows them to work in the US after graduating from a US college.

Every year, the US issues 85,000 new H-1B visas to workers with exceptional abilities. US Citizenship and Immigration Services (USCIS), which oversees the visa process, announced this year that it had received over 300,000 applications for H-1B visas for the fiscal year beginning October 2022.

Over two-thirds of them are generally given to Indian nationals, many of whom work for American technology firms. The then-Trump administration issued a new regulation in 2019 that required businesses to register potential applicants through a digital submission procedure.

While a single potential employer can only register an overseas national employee once, there is no limit to the number of applications that can be made for the same overseas nationwide by various businesses.

According to the lawsuit, the current system is biassed in favor of those who file many applications since it increases their chances of getting picked. Foreign nationals can presently have an unlimited number of registrations submitted on their behalf by the various employer under the laws and regulations governing the cap registration procedure.

This has resulted in an entire industry of so-called “H-1B” consultancies” and bogus employers who have taken advantage of the flawed cap registration guidelines by charging potential employees to file multiple registrations on their behalf, even when there isn’t a bonafide job offer from a qualifying employer,” according to the report. As a result, those who have a lot of registrations have a far better chance of getting picked. “As a result of this pervasive fraud and abuse, plaintiffs, in this case, saw their chances of being picked in the fiscal year 2022 H-1B lottery severely reduces,” it stated.

The procedure is said to be in violation of the Administrative Procedure Act and the Immigration and Nationality Act since the cap registration criteria were developed without statutory authorization, according to the petition. The document further claims that the cap registration rules are arbitrary and never follow the law. It asks that the H-1B cap registration and selection be done in accordance with the INA and that registrations be limited to one per applicant.

In the event of people working in the US on an OPT, the petitioners should leave the US and return to their home countries because their petition was not chosen.

To read more about how H-1B files rose in the year 2022, click the link below:

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