Earlier this year, on June 2, 2016, a lawsuit against the USCIS was filed in federal court alleging the H-1B cap is unlawful because federal law requires H-1B applications be processed on a first come/first serve basis.
The lawsuit was filed as a class action, a legal procedure which allows multiple individuals with the same grievance(s) to join together and file one lawsuit. The case was filed by two employers and two H-1B workers whose cases were not selected in the H-1B cap.
The USCIS filed a motion to have the lawsuit thrown out of court, stating the H-1B workers cannot sue because they are not in the US and that the H-1B employers have not been injured by the H-1B lottery system. On September 23, 2016, the federal judge in the case rejected these arguments and indicated the case will move forward.
If the lottery system is ended, the lawsuit argues that the USCIS should give priority dates to H-1Bs and process the cases in the order received, similar to how green cards are issued. Alternative approaches which have been suggested by various stakeholders include:
- Raising the H-1B cap to a higher number
- Basing the number of H-1Bs on the demand in the US economy
- Creating H-1B cap exemption for those in STEM fields
- Creating H-1B cap exemption for Schedule A occupations (currently RNs and PTS)
- Creating H-1B cap exemption for those with a US master’s degree or greater