Suit Seeks to Halt H-1B Visa System Called ‘Rife’ With Abuse (1)

July 28, 2021, 6:05 PMUpdated: July 28, 2021, 7:43 PM

Parth Sane came to the U.S. from India in 2017 for his master’s degree, then got a job as a software engineer in Des Moines, Iowa, last year.

His employer sought an H-1B specialty visa for him in the annual spring registration and lottery for these temporary workers, who are often employed in the tech sector. But he was among the hundreds of thousands who don’t get picked every year, as demand vastly outpaces annual supply of the visas—65,000, plus 20,000 for those with advanced degrees.

To get one of the coveted slots, employers first have to electronically register employees, paying a $10 fee, abiding a limit of one registration per employee. Randomly selected registrants from that pool are eligible to file applications for H-1B visas.

Under then-President Donald Trump, U.S. Citizenship and Immigration Services created the online system through a 2019 rule—following years-long efforts to simplify the process and potentially save employers from having to compile tons of paperwork—and used it for the first time in March 2020, the same lottery in which Sane lost out.

Through the anonymous social network Blind last spring, Sane heard rumors of people getting registered multiple times, effectively diminishing the chances of those who play by the rules, but figured there was nothing he could do about it. He eventually landed on the mailing list of a group of H-1B seekers exploring a class action suit and a Reddit post that read, “we’re looking to sue @uscis over allowing people to game the system by filing multiple H-1B applications for the same worker.”

Alleging the new system is “rife with fraud and abuse,” an attorney for Sane and hundreds of other disappointed registrants are asking a federal judge to shut it down. Attorneys for the more than 500 plaintiffs in the lawsuit, filed on June 28, on Tuesday filed a motion for a preliminary injunction to put the registration system on hold while they pursue an order to have the rule that created it set aside.

U.S. District Judge Trevor McFadden in Washington will hear arguments over the injunction request on Aug. 27.

‘Next to Impossible’

Underscoring the urgency of their request, counsel for those suing said, the plaintiffs “face the substantial likelihood” that USCIS and DHS will soon run a secondary H-1B lottery for the 2022 fiscal year, “quite possibly in the next few weeks.” If carried out with this online registration system once more, the lottery would further reduce the plaintiffs’ chances of getting chosen.

“I don’t have a very high chance of getting selected, because of the simple fact of how they have made it next to impossible for somebody to get selected if they don’t have more than one filing,” Sane told Bloomberg Law, adding that he may have to sell all of his things and leave the U.S. in less than a year and a half when his student work authorization expires.

“I’m hoping that they will be able to remove duplicate filings, because it essentially makes life unpredictable for us,” he said. “We cannot plan things.”

In an exhibit submitted as part of the complaint filed against the Department of Homeland Security and USCIS, staffing company advertisements in emails and on websites, Facebook, and other social networks promise they’ll submit multiple H-1B filings.

“PLACEMENT WITH IN 3 WEEKS [sic]” and “NO PRIOR EXPERIENCE REQUIRED,” offered one. “Interested applicants with or without a project can reach us,” said another. “We are filing H1b’s this year from Multiple Companies. So that they probability of picking in #cap processes is high [sic],” an account named US Visa Rejection Experiences wrote in a Facebook post, one of several similar ads made part of the composite document.

Dangers of Old System

Ending the online system, however, would come with its own set of problems.

While immigration lawyers agree the online system made it easier for companies to fraudulently register multiple visa seekers, they also agree that going back to the old mail-in system would be a nightmare, forcing the administration to hurry and recreate an electronic registration with more anti-abuse protections by early next year—which some see as an impossible feat.

“Going back to the mailing system, where cases had to be physically prepared and filed—it does seem backwards,” said Sarah Hawk, an attorney at Barnes & Thornburg LLP in Atlanta, noting that it involved extensive preparation and more fees. As for a new system, she said, “I do think employers want to have some assurance that something will be done by the fall, or by the end of the year, because recruitment is underway.”

She joked that USCIS should consider hiring the tech-savvy H-1B visa applicants.

Lawyers, unions, companies, trade groups, and individuals flooded USCIS with public comments warning that more safeguards would be needed and that the ease of applying could create an environment ripe for this kind of abuse when the Trump administration proposed the new system. Representatives of Microsoft, the AFL-CIO, the Information Technology Industry Council, the Semiconductor Industry Association, the Internet Association, and the International Federation of Professional & Technical Engineers were among them.

‘The Bar Is So Low’

Emily Neumann, an attorney at Reddy & Neumann in Houston, who likewise warned of these potential problems, said individuals still could have multiple employers apply for the lottery on their behalf before the creation of the online registration system. The system, she said, just made it easier.

“The other issue is the $10 fee is so low, it’s practically nothing,” Neumann said.

“It allows a company to claim they’re sponsoring multiple people, whether they have a job or not, because the bar is so low for them to submit the registration. It doesn’t require any information about the job offer,” like a labor condition application certified by the U.S. Department of Labor, she added.

Over 100,000 full-blown applications often wouldn’t be selected under the previous system, so the online registration was popular, said Jim Aldrich, who leads the law firm Dykema’s immigration team in Bloomfield Hills, Mich. One would think USCIS could come up with a replacement “where it focuses on the person and not the company that’s submitting the request,” he said.

“If they vacate the rule, then you open up a whole set of other issues about how to go about correcting it,” such as whether USCIS has to redo the last lottery, Aldrich continued. “I’d hate to be the one who’d have to decide what to do next if the rule is vacated.”

It’s a Trump-era regulation, so it’s unclear what the Biden administration will do in response, said Charles Kuck, counsel for the plantiffs in the case.

“We hope they will understand and realize, ‘Oh my gosh, we made a giant mistake. You’re right. We’re going to do an emergency regulation or fix this problem,’” he said. “They can do an emergency rulemaking, and modify the rule to eliminate all but the first registration for an individual foreign national, and then we conduct a lottery for the remaining numbers.”

A USCIS spokesperson said the agency doesn’t comment on issues directly related to pending legislation as a matter of practice. DHS didn’t respond to requests for comment.

(Updates with date judge will hear injunction arguments at seventh paragraph.)

To contact the reporter on this story: Lydia O'Neal in Washington at loneal@bloombergtax.com

To contact the editors responsible for this story: Andrew Harris at aharris@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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