H-1B lottery’s game of chance is legal, judge rules

The government will be able to distribute H-1B visas via lottery in April as usual

H-1B visa Statue of Liberty America

A lawsuit that challenged the fairness and legality of the H-1B lottery system, describing it as a "never ending game of chance," has been thrown out by a federal judge.

The case was heard by U.S. District Court Judge Michael Simon in Oregon; in a 31-page opinion, Simon said that the government's random visa distribution method does not violate the law.

The judge's ruling means that there will no changes to the H-1B distribution system this year.

On April 1, the U.S. will receive visa petitions, or applications, for the 2018 fiscal year that begins Oct. 1. The U.S. holds a lottery if the petitions exceed the 85,000 cap -- an almost certain outcome.

The U.S. last year received 236,000 H-1B petitions, reducing the odds of approval to about one-in-three.

The case was brought by two Portland, Ore. firms, Tenrec Inc., a web development company, and Walker Macy, a landscape architecture firm. Each sought to hire an H-1B visa worker, but lost the lottery. The lawsuit argued that the law requires visa petitions to be processed "in the order" they are filed and not randomly.

Employers submit H-1B petitions and if they lose the annual lottery the only other option is to try again the following year.

The lawsuit charged that the lottery was being gamed at the expense of smaller employers.

The government "left open the door to large companies with multiple business units or subsidiaries to file more than one petition for the same employee in the lottery, and thus receive twice or more the chance of securing a number in the random lottery than a small company," said the plaintiffs in a summary judgment motion.

Following the ruling, plaintiff lead attorney Brent Renison, at Parrilli Renison in Portland, Ore., said: "The court did not say the lottery was the best way to distribute visas, only a permissible way. While we disagree with the court's ultimate ruling which defers to the agency, we note that Congress can change the system for the better."

Simon appeared to consider the merits of a filing date system for H-1B petitions, but said such a system could could be random as well.

"For example, the Fedex driver may have had a flat tire or took a long lunch, resulting in the UPS truck delivering its petitions before Fedex," the judge wrote. "The U.S. Mail delivery may always be delivered in the afternoon for a particular location on the mail route, making its delivery last. Is it fair to process the UPS petitions first, simply because they 'arrived' at the USCIS (U.S. Citizenship and Immigration Service) office first?"

It is possible that President Donald Trump may attempt to make a last-minute change to the system. Some have been urging him to replace it with one that favors smaller H-1B users over large IT outsourcing firms.

Copyright © 2017 IDG Communications, Inc.

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