U.S. Citizenship and Immigration Services has been criticized by hundreds of H-1B applicants over the third round of H-1B lottery selections for specialty occupation visa applications. In response to a previously filed lawsuit, USCIS informed a D.C. federal court earlier in the year that another lottery would not be needed.

A previously filed lawsuit challenged a 2019 policy change requiring companies to sign up for a lottery if they were still interested in an H-1B visa. The government asked the court to remove the case this past September, stating there was little to no likelihood of a third lottery.

Individuals who are seeking H-1B visas filed the lawsuit over the policy change that required businesses to complete a simple registration, rather than completing H-1B petitions. The registrations are used by USCIS to select companies who are then permitted to submit full visa petitions.

The individual H-1B seekers state the policy is not supported by the Immigration and Nationality Act (INA). Per the INA, H-1B visas are to be allocated to “alien” individuals, and petitions are to be adjudicated in the order in which they were filed. This policy, using a company registration process to select who will be allowed to file an H-1B petition, runs counter to the INA policy, per the claimants. In addition, the individuals believe multiple employers are encouraged to file registrations for the same worker, thereby improving the odds of the individual worker being granted the option of filing for an H-1B.

The need for multiple lotteries, per the visa-seekers, is due to the multiple registrations for the same worker, as the estimated number of registrations selected does not represent the true number of individual workers reflected in the filings.

Currently, applicants compete for 65,000 H-1B visas annually, with an additional 20,000 for individuals with master’s degrees or higher from U.S. institutions. Last year, an estimated 275,000 individuals competed for these coveted visas.

ILBSG continues to monitor ongoing policy challenges and changes. If you have questions about the H-1B program or any other immigration-related issue, contact us at ILBSG. We put our expertise and experience to work for you to ensure you get the right advice.

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