On June 28, more than 500 foreign nationals filed a lawsuit (Liu v. Mayorkas) against the Department of Homeland Security (DHS), and the U.S. Citizenship & Immigration Services (USCIS), challenging the validity of the electronic pre-registration system USCIS implemented in 2020 to administer the annual H-1B visa lottery. Plaintiffs allege that the pre-registration system disadvantages good faith employers, encourages speculative H-1B registrations, and is unlawful because it contradicts the manner of visa allocation set out by the Immigration and Nationality Act (INA).
Before 2020, USCIS opened the H-1B quota for filings each April 1 and would accept filings on a “first come, first serve” basis, monitoring available numbers and allocating the available visas “by the alien” as submissions were received. However, in 2007, that approach had to change to meet the U.S. labor market’s increasing demand for skilled workers. Allocating H-1B numbers on a rolling basis became impossible when USCIS received more H-1B petitions on the first day than the annual FY2008 quota allowed for the entire year.